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R v Livingstone

 

[2018] QCA 3

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Livingstone [2018] QCA 3

PARTIES:

R
v
LIVINGSTONE, Jake Desmond
(appellant)

FILE NO/S:

CA No 93 of 2017

SC No 26 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 28 April 2017 (Henry J)

DELIVERED ON:

6 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2017

JUDGES:

Morrison and McMurdo JJA and Mullins J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVE REGARD TO EVIDENCE – where the appellant was convicted of one count of murder, having been found to hold a specific intention to kill or cause grievous bodily harm to the deceased – where the appellant submits that the verdict is unreasonable having regard to the evidence in relation to causation – where an appeal of this kind requires the appellate court to conduct an examination of the evidence – where the exact cause and time of death was unknown – where the evidence from witnesses and the appellant was varied, including statements from the appellant that he did not intend to kill the deceased, wanted to “roll” the deceased for money, and eye witness accounts that he “lost it” and said “die” when attacking the deceased – where the jury was required to find that the appellant intended to kill the deceased or cause him grievous bodily harm from the beginning to the end of the assault – where the appellant submitted that the variations in the evidence meant such a conclusion could not be reached beyond reasonable doubt – where the respondent submitted that the inconsistencies were capable of being resolved and directions to the jury made clear that they had to be satisfied that the appellant held the requisite intention for the entirety of assault – where the jury had the advantage of seeing and hearing the witnesses give evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s intention to cause grievous bodily harm (or death) to the deceased from the start to the end of the assault

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant submitted that a miscarriage of justice was occasioned by the admission into evidence at trial that the appellant had been in jail and was on parole when the deceased was killed – where that evidence was a recording of a telephone conversation between the appellant and a friend who was in prison – where the prejudicial aspect of the evidence was the fact that the appellant was previously in jail and on parole when the offence occurred – where the appellant’s trial counsel brought a pre-trial application to have the recording excluded from evidence – where the application was refused and trial counsel chose to use the evidence to the effect that it was distasteful boasting by a callow youth – where the appellant’s counsel on appeal submitted that it was not suggested at the trial that the impugned statements themselves had probative value and the recording should have been edited or reduced to an admission – where the respondent submitted that the prejudicial effect was outweighed by the recording’s probative value and editing would deprive the evidence of its proper context – where directions were given to the jury as to how to deal with the evidence in a non-prejudicial way – whether the trial judge was correct to refuse the application to exclude the evidence – whether the decision to present the recording as evidence of the appellant’s immaturity was a tactical, forensic decision reasonably made by counsel – whether a miscarriage of justice has occurred

Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56, cited

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed

Noor Mohamed v The King [1949] AC 182; [1948] UKPC 86, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, followed

R v Hasler; Ex parte Attorney-General [1987] 1 Qd R 239; (1986) 21 A Crim R 376, applied

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied

Wongawol v Western Australia (2011) 42 WAR 91; [2011] WASCA 222, cited

Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, considered

COUNSEL:

S M Ryan QC for the appellant

J A Wooldridge for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA and MULLINS J:  The appellant and two of his friends, Hansen and French, were walking down a city street at about 2.30 am.  Coming towards them was Mr Quayle and his female friend, Ms Lievesley.  The appellant started a sudden and completely unprovoked attack on Mr Quayle, punching him in the face, then grappling with him onto the ground.
  2. The appellant was on Mr Quayle’s back, with a chokehold around his neck.  He was yelling at Mr Quayle “die, cunt, die, cock sucker”[1] or “die mother fucker die” and “die grub”.[2]  He maintained the chokehold until Mr Quayle went limp.
  3. Afterwards, the appellant and his friends left.  The appellant disposed of his shoes in a bin, and they went home.  A short time later they drove past the scene and saw the body covered in a sheet.  The appellant went to a creek area and burned his t-shirt.  He then retrieved the shoes and disposed of them and his shorts.
  4. Mr Quayle died on the street where he was attacked.
  5. As a consequence of these events the appellant was charged with murder.  After a trial he was found guilty.
  6. He appeals against his conviction on two grounds:
    1. a miscarriage of justice was occasioned by the admission into evidence at trial that the appellant had been in jail and was on parole when the deceased was killed;
    2. the verdict was unreasonable and cannot be supported by the evidence.

Ground 1 – admission of evidence

  1. This ground concerned the admission of evidence at trial that the appellant had been in jail and was on parole when Mr Quayle was killed.
  2. The evidence was part of a phone call that took place while the appellant was in prison.  It was a conversation between the appellant and a friend (Lemalu-Lefaele Junior) on 11 June 2015, in which the appellant admitted that he “got smashed, went to roll this cunt for his money”.  During the call he also said that he had been out of jail and on parole for only two days when he committed the offence.
  3. The text of the call is set out below, and the relevant parts are highlighted.[3]

“Appellant: Yeah, you seen me on the news?

Lefaele: Yeah.

Appellant: (laughs) Yeah bro.

Lefaele: Fuckin’ naughty cunt. (laughs)

Appellant: How’s that, get out for two days, go kill someone, come back.

Lefaele: Yeah, two days, is that all, how long it was? Fuck that.

Appellant: Yeah two days.

Appellant: Get out on parole, I got my parole back, got smashed, went to roll this cunt for his money, and then bashed him and choked him.

Lefaele: Oh -

Appellant: Yeah. (laughs)”

Submissions

  1. For the appellant, Ms Ryan QC submitted that it was not suggested at the trial that that part of the evidence which referred to jail and parole had any probative value.  The argument at trial proceeded on the basis that the impugned part could not be edited from the rest.  There were ways to sever the two, which would have avoided the prejudice flowing from the part about jail and parole.  One was to reduce the relevant part to an admission by the Crown and defence, so that it was confined to the appellant saying “got smashed, went to roll this cunt for his money, and then bashed him and choked him”.
  2. It was further submitted that whilst the evidence of the appellant’s demeanour when making the statement could have been lost, the evidence of his very recent parole release date was so unfairly prejudicial that its admission rendered the trial unfair.  The jury may have impermissibly reasoned that as a recently released prisoner/criminal, he was likely to have assaulted the deceased with an intention to do grievous bodily harm or to kill, rather than with a lesser intention.
  3. In so far as it was suggested that defence counsel might have wanted to portray the conversation as skiting or bravado, that argument could be made without the jury hearing that the appellant had got out of jail two days before and was on parole.
  4. For the Crown it was submitted, that the basis on which Counsel for the appellant at trial sought the exclusion of the recording was primarily that its prejudicial effect outweighed its probative value.  The application to exclude the evidence was not for the editing of the recording to remove the prejudicial material.  Rather, it was positively submitted below that the alleged admission against interest was inextricably tied up with higher prejudicial information, namely that the appellant was at the time of committing the alleged offences subject to a jail sentence, and further still, that he had only been released on parole very shortly before the offence occurred.  It was contended therefore that the difficulty could not be remedied by truncating or editing the recording to remove the references to the appellant’s custodial arrangements as to do so, would deprive the jury of the ability to consider the statements made in their true and proper context, ie. that the statements were made in the nature of a boast and are unreliable and thus deserving of little weight or consideration.  This position was also advanced in oral submissions.
  5. In direct contradiction of the position taken by the appellant’s Counsel at trial, the appellant now submitted that there were “ways of dealing” with the evidence contained in the telephone call, which would not have exposed the jury to the statements which may have occasioned him prejudice.
  6. The learned trial judge concluded that it was quite elementary that such evidence has significant probative value and was on the face of it, a confession to at least most and possibly all, of the elements of the charged offence of murder.  His Honour concluded that the prejudice arising from the admission would have to be extremely significant in order to outweigh the probative value of the evidence.  The resulting prejudice, his Honour concluded rightly, could adequately be addressed by careful direction.
  7. It was submitted that this Court would be slow to intervene in the way contended by the appellant on this appeal in light of the forensic decisions made by trial Counsel.  It was submitted that no error or miscarriage of justice could be demonstrated from the evidence not having instead been put before the jury by way of an admission.  That does not demonstrate error in the ruling of the learned trial judge not to exclude the recording.
  8. It was further submitted that having regard to the manner in which the application to exclude the evidence was conducted, it was evident that no admission was or would be forthcoming from the defence at trial.  Nor was the Crown required, (although if asked it may have done so), to reduce the recording to an admission, should the defence have sought that course.  There was an interest in the best evidence, being the recording itself being played for the jury’s consideration.

Discussion

  1. The prejudicial aspect of the conversation was the fact that the appellant was previously in jail and on parole when the killing occurred.
  2. When the appellant said “have you seen me on the news” and Lefaele says yes, that is followed quickly by the appellant laughing.  The response by Lefaele was “Fuckin’ naughty cunt” and he laughs also.  That could well be seen to convey that Lefaele was in awe of the appellant, admired what he had done, or joined in thinking it was a laughing matter.
  3. Then the next response from the appellant was: “How’s that, get out for two days, go kill someone, come back”.  Obviously the “get out for two days” and then “come back” comments could be understood as referring to jail.
  4. Then came the comment upon which most attention was focussed: “Get out on parole, I got my parole back, got smashed, went to roll this cunt for his money, and then bashed him and choked him”.  On the recording the appellant puts emphasis on the word “smashed”.  Plainly, the comment “Get out on parole, I got my parole back” refers to the appellant being in the criminal justice system, and specifically getting out of jail on parole.
  5. The difficulties that confronted the appellant’s trial Counsel, and the contention that the impugned words could be dealt with by editing or admission, are several.
  6. First, those words, even if edited, would include three parts: (i) “have you seen me on the news?” and associated laughter from the appellant, (ii) “go kill someone, come back”; and (iii) “got smashed, went to roll this cunt for his money, and then bashed him and choked him” and the appellant’s laughter associated with them.  Those words, without their context, are capable of conveying a stark and clinical account of the assault.  Moreover, the laughter was capable of depicting that the appellant was proud of what he had done.  Without more a jury could well construe them as indicating a remorseless person recounting a deadly assault in a boastful way.
  7. Absent any context, the words could not be characterised as a young man skiting in a way that was not factually accurate, or at least in a way that meant the jury could doubt its veracity.  That need for context is provided by at least three matters: (i) the appellant’s boastful laughing at what he had done; (ii) the conspiratorial or admiring “Fuckin’ naughty cunt” and laughing, in response to the question “have you seen me on the news”; and (iii) the appellant’s repeated laughter at the end.  Editing would leave those features in the recording, and one wonders, as defence counsel evidently did, how could that be explained away or its impact minimized, if not expunged from the jury’s mind?
  8. Having listened to the recording it is not evident how successful the editing process would be if an edited recording was the object.  In our view, that process would produce a distorted account, especially as there would be no basis to try to edit out the laughter.
  9. The putative written admission would be that: on 11 June 2015, the appellant said to Lefaele: “have you seen me on the news?” … “[I] go kill someone, come back” … and [I] “got smashed, went to roll this cunt for his money, and then bashed him and choked him”.  Without more to know about how and why that was said, it could be regarded by the jury as the cold confession of an intentional killer.  And, from the Crown’s point of view, would be absent the powerful effect of the appellant’s laughing at what he had done.
  10. Secondly, trial Counsel for the appellant was not offering to agree an admission for the statements: “have you seen me on the news? … “[I] go kill someone, come back” … and “[I] got smashed, went to roll this cunt for his money, and then bashed him and choked him”.  Rather he was trying to exclude all of the phone call on the basis that the prejudicial effect outweighed the probative value.  Though Counsel did not expressly say so it is also certain, in our view, that he was trying to avoid the effect of the appellant’s laughter.
  11. Thirdly, trial Counsel for the appellant was confronted with a dilemma.  There was other evidence to be led at the trial that contained admissions from the appellant without any connotation of an intention to rob, and thus directly contrary to what was said in the phone call:
    1. by Dale: asking the appellant “What’s going on?” and the appellant says, “I killed someone tonight.”  Dale: “What, were you serious?” and the appellant said, “Up Centrals.”  Dale: “How have you done that?  Was he fighting?”, and the appellant responds, “I did it out of pure rage.  I grabbed him and strangled him”; in that account there was no mention of attempting to rob;[4]
    2. by Dulieu: the appellant shows Dulieu a digital edition of the Cairns Post, and he’s asked, “What the hell were you thinking?”, and the appellant says, “I wasn’t thinking straight.  I was drunk and I was trying to make my way home”; again there is no reference to intent to rob;[5] and
    3. by O’Brien: the appellant told Ms O’Brien, “Go look at the news”, and she asked him, “What were you talking about?”  He said, “I’ve fucked up.  I’m in more trouble than I’ve ever been in before.  I got into a fight last night”; that account made no reference to a robbery.[6]
  12. And, the appellant denied the evidence of Ms French, that the appellant had said anything to the effect of “let’s roll them”.[7]  In his record of interview the appellant gave an account devoid of any suggestion that there was an intention to rob.  That account was that there was some suggested impropriety by Mr Quayle towards his companion, and the appellant decided to intervene, and inflicted violence on him, punching him, taking him to the ground and applying a restraint around his neck whilst on the ground.[8]
  13. Thus the real dilemma was that in all but the phone call the appellant said gave an account that did not include robbery as reason for the assault.  Therefore trial Counsel for the appellant was confronted with the problem; how to explain to the jury that in the phone call the appellant had ascribed the reason for the assault as being to rob, whereas in all other evidence he had said no such thing?
  14. And, if the words (“have you seen me on the news?” … “[I] go kill someone, come back” … and [I] “got smashed, went to roll this cunt for his money, and then bashed him and choked him”) went in, how to explain them and the associated laughter away?

Forensic decision?

  1. At the time of the application to exclude the evidence Counsel for the appellant made this submission:[9]

“13.On the other hand, the evidence has low probative value and is of questionable reliability, having regard to the following matters:

  1. The statements made clearly have the flavour of a boastful description of the nature of the case against the defendant, made by an immature youth in a prison setting rather than actual admissions against interest.
  1. It is not possible to remedy the difficulty with the evidence by truncating or editing the statements made to remove the references to his custodial situation, as to do so, would deprive the jury of the ability to consider the statements made in their true and proper context, i.e. that the statements made were in the nature of a boast and are unreliable and thus deserving of little weight or consideration.  However, that the statements made are more than likely a distasteful boast by a callow youth enmeshed in a prison culture, contains the inherent difficulty that inevitable focus and emphasis would then be placed on the defendant’s bad character and criminal propensity.  In all of the circumstances, there is a very real risk that the jury will place undue weight on the unreliable statements made by the defendant and further, that the defendant’s words would be misused by the jury to establish a criminal propensity on the part of the defendant.”
  1. That approach was, in our view, plainly influenced by the fact that his client could be heard, with another, treating the killing of Mr Quayle as a matter of mirth.  The characterisation of it as a “distasteful boast by a callow youth enmeshed in a prison culture” was an understandable response, and perhaps the only response absent putting the appellant in the witness box.
  2. In those circumstances, then, it is not surprising that trial Counsel for the appellant took the view that the prejudicial words and the probative words were practically inseparable.  It was a view shared with the learned trial judge who said:[10]

I should say … that I gather from your outline you’re of the view – I have to say, by the look of it, I’d agree with you – that the reference to him being out on parole and getting his parole back with the admission is so bound up with it that it wouldn’t be appropriate that it could be edited out or, indeed, attempted to be edited out, in the circumstances.”

  1. Defence counsel’s response was to say that “the defence is in a bind about that”.  Trial Counsel then put the argument on the basis that it was “so bound up that that is a reason to support its exclusion”,[11] relying on R v Hasler; Ex parte Attorney-General.[12]  In particular, reliance was placed on the discussion by Thomas J at 249, where Noor Mohamed v The King[13] was referred to.
  2. Then followed this passage:[14]

HIS HONOUR: I have ruled out that editing it out could have the tendency to distort it, and, indeed, if the evidence goes in, it would rob you of an argument about it being boastful nonsense and so on – sort of a tough guy trying to impress someone he knows.

[DEFENCE COUNSEL]: That’s right. And that, of course, feeds into the prejudicial nature, at least so far as that would lead to a focus on his criminal propensity, and that we’re saying to the jury we must use that information.  I can’t take the matter any further than that, your Honour.”

  1. Of course that debate took place in circumstances where there were alternative bases for the charge of murder.  The alternative still on foot at that point was under s 302(1)(b) of the Criminal Code (Qld), namely felony murder, that is, murder committed in the prosecution of the unlawful purpose of robbing.  Later in the trial the Crown chose not to pursue felony murder.  However, at the point of the application to exclude it, the alternative explains why even the words “went to roll this cunt for his money” were problematic for the defence.

The trial judge’s ruling

  1. The ruling by the learned trial judge was in these terms:[15]

“The matter presently presents as murder conventionally in the sense of it involving an intent to kill or do grievous bodily harm and/or as a felony murder, that is, a killing occurring as an incident of an intended robbery.  In the taped call, the accused admitted he “got smashed, went to roll this cunt for his money” and then bashed him and choked him.  It is, I think, quite elementary that such evidence has significant probative value.  It is, on the face of it, a confession to at least most, and possibly all, of the elements of the charged offence.  Because of that, the prejudicial risk of its misuse, or other prejudice associated with its admission, would have to be extremely significant to outweigh the high probative value of the evidence.  The prejudices and risks of misuse identified are simply not of such high level concern.

The call was placed by the accused whilst in jail.  That of itself is obviously prejudicial, but obviously much more prejudicial is that during the call he mentioned that he’d only been out of jail on parole for two days when he committed the alleged murder.  That reference is so intrinsically bound up with the passage to which I have referred – indeed, is part of it – that it is not suggested that it ought be edited out, even if it could be.  Indeed, I accept that it would be potentially so misleading were it edited out that in the event the evidence was admitted it would be quite unfair that the defence would be deprived of the information.  The defence, though, making a virtue of necessity, argued that because it has to stay in, it results in significant prejudice.

I accept there is always a risk that jurors may be swayed by prejudice, however, that risk is ordinarily regarded as sufficiently guarded against by appropriately crafted directions.  I do not think the risk of prejudice here is so grave that it warrants depriving the jury of evidence which carries such high probative value about a central feature of the trial.  The peripheral prejudice that such evidence also involves, by revealing that the accused was only recently out of jail on parole, can, in my view, be adequately dealt with by careful direction.  The other main leg to the argument is – and it was not quite put this way – really, the questionable reliability of the confession, and an associated argument that because of that questionable reliability, in truth, it only has low probative value.  My view about its probative value being high has already been expressed, but I ought elaborate a little further by reference to some of the arguments advanced about this feature.

It was argued that the statements “clearly” have the flavour of a boastful description of the nature of the case against the defendant by an immature youth in a prison setting, rather than actual admissions against interest.  Whether that is clear or not, I think, is very debatable.  Having heard it, it’s not immediately obvious to me that what was said would be dismissed as mere boasting.  I accept the circumstances of the case are sufficient to provide some argument that it might’ve been boasting by an immature youth in a prison setting, but, at the risk of sounding predictable, that’s an argument that can safely be run in front of the jury, and they can weigh up whether or not it ought be relied upon as being accurate, or ought be disregarded as a mere boastful description of the nature of the case against him.

Really, in a similar vein, the point is made that the accused knew about the allegation, that he apparently is said by one witness to have said “let’s roll them” or “roll him”.  The argument is that giving him this knowledge infects or contaminates his subsequent commentary about the incident.  Really, for the same reasons already given, that’s a matter of argument either way which can sensibly be advanced before the jury without a risk of misuse.  The mere fact that the accused denied making the statement about rolling him in his record of interview is hardly determinative, and it’s really not a factor of any materiality in considering this leg of the argument.

It was highlighted that the accused did not admit to anyone else that he had intended to rob the deceased, but it’s not uncommonly the case that admissions are made to one person and not to others.  The point is further made that, in the upshot, this was not a robbery, ultimately, in the sense that the personal items of the deceased remained with him, but, again, this is really a matter of argument about how the events ought be interpreted, of a kind that the jury can adequately consider and do appropriate justice to, the obvious argument being that the fact that ultimately nothing was stolen may, on the one hand, reflect, consistent with the defence case, presumably, that this was never intended to be a robbery, or, on the other hand, may still be consistent with the prosecution case that it was, and merely that, having gone too far and done what he did to the deceased, the accused fled without following through on his intended course of criminal conduct.

It can be seen, then, that these arguments do not, in all seriousness, undermine the impression I’ve had from the outset.  I have to say that it is quite elementary that this evidence has potentially very significant probative value [indistinct] neutral assessment at least has significant probative value, and materially more so than any prejudice that might be associated with its admission.  The application is therefore dismissed.”

  1. As can be seen the learned trial judge identified the probative part of what was said: “got smashed, went to roll this cunt for his money and then bashed him and choked him”.  That probative value could be outweighed by the prejudicial effect of the references to jail and parole but his Honour held to do so it “would have to be extremely significant”, and was not of that order.
  2. The debate as to exclusion therefore reveals that trial Counsel for the appellant took a deliberate course of eschewing severance of the words because that would deprive him of a forensic advantage in convincing the jury of the unreliability of what was said.  Central to that, it seems, was the view that keeping the call intact would permit it to be shown as the distasteful boasting of a callow youth.

Prospect of admissions

  1. However, before this Court, Ms Ryan QC submitted that severance would have preserved the real benefit for the defence, not identified by the defence in its application, namely that what was said showed an intention at the start of the attack simply to rob, not to kill or cause grievous bodily harm.[16]
  2. It was submitted that defence counsel, evaluating the two alternatives and acting in the best interests of their client, ought to have accepted that the way to get that evidence before the jury without its unfairly prejudicial effect was to reduce it to an admission.  That could and should have been achieved by a defence admission such as: “the defence admits that on 11 of June 2015 the appellant told Isaac Lemalu-Lefaele that he got smashed, went to roll this cunt for his money, and then bashed him and choked him”.
  3. There is a central difficulty confronting acceptance of that submission.  At the time of the application to exclude the Crown’s case still included murder felony as a basis for murder, that is, murder whilst robbing.  In those circumstances it is hard to conclude that the defence would have admitted something that went to the heart of that offence, namely that there was an intention to rob.  That is because:
  1. the alternative bases for the murder charge were murder and felony murder;
  2. the proposed admission would be that the appellant said he: “got smashed, went to roll this cunt for his money, and then bashed him and choked him”;
  3. at the start of the trial the appellant knew that other witnesses (Ms French and Mr Hansen) were going to say that they saw him bash and choke the victim;
  4. at the start of the trial the appellant knew that evidence of his other admissions would be given; he had also given an interview to police in which he admitted that he had hit the victim (“I whacked him” and that the appellant had “started it”;[17] “I smacked him” and “I hit him”;[18] “I got him in a headlock”[19] or “master lock”[20]); Mr Dale was to say that he admitted that he killed the victim “with his bare hands” and he “strangled him out of rage”; Ms Stowe (corrections officer) was to say she heard the appellant say he punched or “king hit” the victim and “choked him out”;
  5. what the proposed admission added to that evidence was the appellant’s own admission of the intention to rob (“roll this cunt for his money”); that admission would thereby prove a central element of felony murder; at the start of the trial, other than that there was only the evidence of Ms French (before the attack the appellant said “Let’s roll them” but she thought it was a joke); Mr Hansen said nothing that reflected an intention to rob; and
  6. given that state of affairs, in our view, the defence would not have admitted the intention to rob.
  1. Further, there was no prospect that the Crown would have accepted a lesser version of the admission, with the intention to rob removed.  None was evident from what was said at the trial, it would have harmed the felony murder case, the circumstances in the preceding paragraph told against it, and that was not suggested to this Court.  Indeed, Ms Ryan accepted that there was no viable argument as to why the statement of intention to rob could be excluded at trial.
  2. If a sanitised version of the call could have been edited or admitted it would omit that it was a call while in jail, and relevantly look like this:

“Appellant: Yeah, you seen me on the news?

Lefaele: Yeah.

Appellant: (laughs) Yeah bro.

Lefaele: Fuckin’ naughty cunt. (laughs)

Appellant: How’s that, get out for two days, go kill someone, come back.

Lefaele: Yeah, two days, is that all, how long it was?  Fuck that.

Appellant: Yeah two days.

Appellant: Get out on parole, I got my parole back, got smashed, went to roll this cunt for his money, and then bashed him and choked him.

Lefaele: Oh –

Appellant: Yeah (laughs).”

  1. From the point of view of defence counsel there would be no purpose in admitting that without trying to preserve the ability to convince the jury that what was said should be discounted.  After all, without the context it was a bare admission of wanton killing, with the element of intention to rob.
  2. Therefore it is evident that defence counsel found himself with a forensic decision to make at the start of the trial.  If, as he said in submissions, he believed that the prejudicial parts could not be separated out without depriving the jury of the ability to consider the statements made in their true and proper context, he either tried to exclude it all, or if that failed, leave it in so he could exploit the statements in their true and proper context, i.e. portray them to the jury as the distasteful boasts by a callow youth enmeshed in a prison culture.
  3. The transcript reveals that he opted for the latter.  Whilst not all Counsel might have made the same decision, it was a deliberate tactic.  And, it should be not assumed, absent a ground such as incompetency of Counsel, that the tactic used was not on instructions from the appellant.  That explains why it was done, but that is not the question.  Rather it is the significance of what occurred that matters.[21]  As was said in TKWJ v The Queen[22] by Gaudron J:

[31] As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice.  But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of “flagrant incompetence”, “egregious error” or the like.

[32] An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.  As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:

“[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.”

[33] Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision.  This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.  It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that “when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused”.

  1. Then the question is whether there was a miscarriage of justice because the jury had the full text of the phone call.
  2. The alternative basis of felony murder was dropped by the Crown shortly before addresses began.  The debate about what directions should be given included debate about the question of intent on the felony murder case, and what act was relied upon as that which endangered life.[23]  Having examined the matter and concluded that it was the neck hold that was the relevant act, the learned trial judge expressed concern about the potential for duplicity.  His Honour said:[24]

This leaves us, though, with the problem that to avoid the duplicity, the prosecution, it seems to me, would have to do one of two things now.  It must elect to confine the actions relied upon to the neck hold, if it seeks to maintain reliance upon section 302(1)(a) and (b), for it seems to me that’s the only way in which it can sustain 302(1)(b).  That, I appreciate, may be a singularly unattractive option, narrowing, as it does, the pathway to a causation finding for the purpose of unlawful killing.  But if it did not take that course and elected to maintain the whole assault as being the relevant act, I would have to conclude that there would be no case on section 302(1)(b) able to go to the jury because it is a different case so far as the actions relied upon in 302(1)(a).”

  1. After considering what was said the prosecutor dropped the felony murder alternative.[25]  Defence counsel then raised the question of directions about the phone call and “its relevance to the jury’s deliberations”.[26]  Specifically it was submitted that the call contained no evidence as to intent other than intent to rob.[27]  The prosecutor accepted that it contained no admission of the relevant mental element (felony murder having been dropped) but did have admissions about doing acts from which intent could be inferred.[28]
  2. The next day the jury were told that the felony murder case had been dropped.[29]  No specific form of direction was sought by defence counsel as to the phone call.

The learned trial judge’s direction on the phone call

  1. As can be seen from the learned trial judge’s ruling on the application to exclude the phone call evidence, in paragraph [38] above, it had been acknowledged that the reference to the appellant having been in jail and on parole meant: (i) the call was “obviously prejudicial” because it was while the appellant was in jail; (ii) “obviously much more prejudicial” was the fact that the appellant mentioned he had only been out of jail on parole; (iii) there was a risk that jurors may be swayed by prejudice; (iv) that risk is ordinarily regarded as sufficiently guarded against by appropriately crafted directions; (v) that prejudice could, in this case, be adequately dealt with by careful direction.
  2. When the call was played to the jury they were told that it was the appellant’s voice.  Once the recording finished the learned trial judge immediately directed the jury in these terms:[30]

HIS HONOUR: All right.  Members of the jury, in the conversation just played to you the accused referred to himself as having been out on parole shortly before the night with which we’re concerned here.  That revelation is the sort of revelation that media loves to play with in the public sector.  They’re entitled to do as they will with such information, but let’s not let ourselves run away with the sort of thing that sometimes gets run away with on front pages of newspapers.

In our criminal justice system we assess the question with whether or not the charged offence was committed by reference to what actually the evidence shows occurred when the offence was committed.  We do not determine guilt by reference to whether the defendant has broken the law in the past.  That’s not our matter of moral judgment or matter of writing articles.  That’s not our obligation.  That’s not our concern.  Our concern here is solely with the question of his guilt or innocence of the charge that’s before you, and that must be determined on the evidence that’s adduced before you.

So you must not have regard to the fact that the accused was apparently out on parole to reason in some way that, therefore, because he must have committed some breach of the law in the past, he is, therefore, guilty of this offence.  That would be quite illogical.  You must determine guilt on the evidence that relates to this offence, not the fact that he may have committed some other offence in the past.  I trust you understand the logic of that approach.  So do try and keep a handle on what actually matters here compared to what the commentariat in the public may think significant because they’re two different things.

Whatever criticisms people may or may not make of the parole system is simply nothing to do with our current task.  Our current task is to assess this man’s guilt or innocence based on the evidence of what he actually did, not based on whether or not he committed some offence in the past.”

  1. There was no application for any further direction.
  2. Early in the summing up the learned trial judge directed the jury to dismiss all feelings of prejudice and returned to the warning he had given about the parole reference:[31]

I pause to remind you of the earlier warning I gave you in this trial: that we assess guilt in our system of criminal justice based on the evidence of what the person is alleged to have done, not based on knowledge that the person may have broken some other law at some other point in time.  That was especially important, earlier in the trial, for me to highlight when you heard evidence that showed, apparently, that he was out on parole, which may give rise to the inference that he must have committed some other offence in the past.  I repeat: you disregard that fact, as juicy and salacious as people who want to criticise the parole system might think it be; it is completely irrelevant because it cannot help you determine whether in this instance, for the offences charged here, he is guilty or not guilty.

In a similar vein, you would appreciate, of course, as much was acknowledged by the defendant’s counsel, that at the very best for him, he behaved reprehensibly on the night in question.  But we are not a court of morals; you ought not let that aspect of the matter blur you from the need to coldly and clinically evaluate whether the evidence proves guilt beyond reasonable doubt of the offences charged.”

  1. In the course of the summing up the phone call was mentioned again,[32]  when his Honour came to summing up about the appellant’s account of what happened and how that might be considered in the context of self-defence.  His Honour then moved to the topic of lies and how to deal with them, then intent.
  2. In the course of his address to the jury, defence counsel made good on the tactic he had referred to in his submissions on the application to exclude.  He told the jury about the context of the call, and its being made by a boastful, immature person, in prison and influenced by that.  So much is evident from the learned trial judge’s summing up.  When dealing with the address by defence counsel the learned trial judge said:[33]

Of the prison phone call, you’re reminded that the only intention referred to there was to roll for money, not – not to kill or do grievous bodily harm.  You are asked to bear in mind that you are obviously listening in that call to a young, immature person in prison, where prison culture and crime may give some credence or cache to someone charged with something like this, so that boasting may come in to what’s being said.”

  1. The phone call was next referred to in dealing with the Crown’s address:[34]

It was submitted the telephone call is useful because he makes no reference to self-defence, and reference is made to bashing and choking.”

  1. After the summing up was completed, defence counsel sought a redirection concerning the phone call, but not in respect of any further warning about the possible prejudice:[35]

“[DEFENCE COUNSEL]: Just one moment, your Honour.  Your Honour I don’t think raised directly the – or gave any redirections about the use to be made of the telephone call from the prison.  Your Honour certainly spoke of it in the context of the post-offence conduct but there was no direct reference to it.

HIS HONOUR: Can you just remind me what you say I should say?

[DEFENCE COUNSEL]: That it can’t be used to – in respect of the issue of intention.  It can’t be used to prove an intention and, in fact, could establish a lesser intention, be used in that way, or another intention [indistinct].”

  1. The prosecutor then submitted that any redirection had to take account of the fact that the reference to choking in the call was confirmatory of an act relied upon by the Crown as to the manner of the assault.[36]  The debate continued concentrating on the use that might be made of the call on the issue of intent.  Defence counsel submitted that the nature of the redirection he sought was concerned with the aspect that there was no express admission about intention to kill, rather only to rob.  The learned trial judge expressed that any redirection should include that the choke reference could be used to add to other evidence about the manner of the assault.[37]  Defence counsel then abandoned his application for a redirection.[38]

Conclusion – ground 1

  1. There is no doubt that ordinarily it is prejudicial to have a jury know that the accused had just been released from jail, or on parole when the particular offence was committed.  The learned trial judge recognised as much.  But defence counsel took a particular tactical step based on his assessment that those references could not be severed from the rest without causing the particular context to be lost.  He wished to exploit that context before the jury, to portray whatever was said to be the distasteful boasting of an immature youth, egged on to do so by the prison atmosphere.  That mattered because at the time felony murder was still on foot as an alternative basis for murder and the admissible part of the phone call admitted a central element of that offence.  It also mattered because of the effect the appellant’s laughter would likely have on the jury.
  2. In terms of the language used in TKWJ,[39] an informed and deliberate decision was made to pursue or not to pursue a particular course at the trial, and the course taken is explicable on the basis that it could have resulted in a forensic advantage.
  3. Further, the learned trial judge, conscious of the risk of prejudice that would normally flow, considered that properly crafted directions could overcome that risk.  That was necessary because the unobjectionable part of the phone call was, in his Honour’s assessment, highly probative.  When the phone call was played to the jury the learned trial judge gave an immediate direction, instructing that those prejudicial references could play no part in the jury’s analysis.  That direction was reiterated at the start of the summing up.  Having been twice directed that it had to play no part in their analysis, we are not prepared to assume that the jury ignored what they were directed to do.
  4. The prospect of editing out, or crafting an admission that had the same result, was not pursued at trial.  For the reasons we have expressed earlier we do not consider that there was a realistic option of agreeing to appropriate admissions.
  5. At trial reliance was placed on R v Hasler; Ex parte Attorney-General,[40] and in particular the following passage from the reasons of Thomas J as to the discretion to exclude admissible but prejudicial evidence:

“Recognition of the discretion as it is now understood, and attempts to formulate it may conveniently be traced from Noor Mohamed v. R. [1949] A.C. 182.  The question arises only with respect to evidence which is relevant to an issue in the case but which also demonstrates misconduct with which the accused is not charged.  Lord Du Parcq said (at 192):

“In all such cases the Judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted.  If, so far as the purpose is concerned, it can in the circumstances of the case have only trifling weight, the Judge will be right to exclude it. … it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible.”

This basis is, perhaps, sometimes overlooked.  Application of the discretion is not a loose balancing exercise of prejudice and against probative value.  It is an exceptional power exercisable in cases where fair play demands it.  It must not be overlooked that the central plank of our system of evidence is that relevant evidence is admissible, and it is not to the point to complain that it may have secondary damaging effects upon the adversary’s case or that it may also show something else which is not in issue.  In criminal cases, if it is possible to excise irrelevant or unnecessary appendages from relevant evidence this will be done.  But it should not be done to such an extent as to distort or pervert the remaining evidence.  It is in cases where this excision cannot be comfortably accommodated that there is a call for the exercise of the discretion.”

  1. In our view, Hasler supports the decision to include the evidence but give appropriate directions.  The evidence that was probative was not of trifling weight and the interests of justice called for its admission.  It could not, in the view of defence counsel and the trial judge, be severed from the prejudicial part without distorting the remaining evidence.
  2. We respectfully agree with the additional reasons of McMurdo JA in respect of this ground of appeal.  In our view, it has not been demonstrated that the inclusion of those references in the phone call had the effect that the trial miscarried.

Ground 2 – unreasonable verdict

  1. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[41] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
  2. In M v The Queen, the High Court said:[42]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

  1. M v The Queen also held that:[43]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

  1. Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay:[44]

[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.”  Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

Evidence at the trial

  1. Evidence at the trial was given by:
  1. the appellant’s companions at the time of the assault, Ms French and Mr Hansen;
  2. admissions as to the evidence of Mr Quayle’s female companion, Ms Lievesley;
  3. the appellant’s friends, Mr Dulieu, Mr Dale and Mr Vick;
  4. Mr Griffiths and Mr Hopkins, who knew Mr Quayle;
  5. police officers as to the investigation, the tape recording of the appellant’s phone call and the interview with the appellant;
  6. forensic pathologists Dr Bottrill and Mr Duflou;
  7. Mr Bodsworth, an ambulance officer;
  8. formal admissions, photographic evidence, CCTV footage; and
  9. Ms Stowe, a custodial correctional officer.

Evidence of Ms French

  1. Ms French was an indemnified witness.  She had known the appellant for some six months at the time of the events.  She also knew Mr Hansen for about four months.  On the day of the assault she had been drinking alcohol and smoking cannabis at home.  Once her flatmate (Mr Vick) got home they went to get some dinner, then went to a bar to drink and play pool.  They joined the appellant and Mr Hansen, who were playing pool nearby.
  2. At the end of the night the four of them went back to her place.  There they smoked more cannabis.  The appellant did not smoke any cannabis.  When the cannabis ran out Mr Hansen said there was more at the appellant’s house so it was decided to go there.  They left to do that at about 2.15 am.  As they were walking she described the appellant as “quite drunk”, as was Mr Hansen.
  3. She heard two people, a female and a male, approaching from the opposite direction. When they first noticed the two people the appellant said, “Let’s roll them.”  Mr Hansen responded, “I won’t throw … the first punch but I’ll back you up if you need.”  Ms French said, “Yeah, go on then because I’ll take the girl.”  Ms French said: “I didn’t think it was serious.  I didn’t think it was, yeah, being real”.[45]
  4. The appellant had handed her his sunglasses and phone, which she handed to Mr Hansen. The female ran past them.  The appellant adjusted his line of walking so that he was walking directly in front of Mr Quayle.  As they met Mr Quayle stepped off the footpath.  The appellant said something to Mr Quayle who did not respond but looked up as if to acknowledge the appellant.  The appellant punched Mr Quayle in the face, causing him to stumble back.  Mr Quayle said “What the fuck, cunt?”  The appellant walked up to him, put his arm behind Mr Quayle’s head and punched him to the head twice more.  At that point Mr Quayle had not reacted physically.[46]
  5. Mr Quayle put his arms up as if to defend himself, and he and the appellant started grappling, facing each other and each with hands on the other’s shoulders.  They were pushing each other.  The appellant was “quite aggressive”, “the more the male seemed to defend himself, the more aggressive [the appellant] seemed to get”, and “compared to the start, it had started to increase in aggressiveness”.[47]
  6. They ended up on the road, then on the grass beside the road.  The appellant swung Mr Quayle and he landed face down on the grass.  The appellant jumped on his back and “put his arm around his neck in … a chokehold”.[48]  The appellant “seemed like he lost it” and was yelling “die, cunt” and “die cock sucker”.[49]  He repeated that a number of times.  Mr Quayle had his arms outstretched to the sides.  After about a minute Mr Quayle went limp and the appellant got off him.
  7. Ms French looked at Mr Quayle and thought she saw him still breathing,[50] but she was unsure about that.[51]
  8. She described the appellant when he got off Mr Quayle as being “on a high”, and she thought at one point he was going to hit her in the face.  He smacked the back of his hand and said “Smacking bitch is out”.[52]  Someone referred to being seen on CCTV so the appellant took his shirt off and it was put in Ms French’s handbag.  The three of them walked off.  The appellant disposed of his shoes in a garbage bin.  Some distance away she told the appellant to put his shirt back on.
  9. The three got into a taxi and went to the appellant’s unit.  At about 4 am they drove past the site and saw police there and a body covered in a sheet.  They drove on because the appellant wanted to get rid of his clothes.  They stopped at a creek where the appellant and Mr Hansen burned their t-shirts.  They then drove back because the appellant wanted to retrieve his shoes from the bin so he could dispose of them elsewhere.  Ms French retrieved them.  They then drove to an area of mangroves and the appellant threw his shoes in.  Mr Hansen and the appellant also disposed of their shorts there.
  10. The next night Ms French went to the police.
  11. Ms French identified photographs of the clothing, areas where the appellant disposed of his clothes and shoes, CCTV footage of the three of them.
  12. In cross-examination Ms French largely adhered to her account of the events.  Ms French was not challenged on her evidence that the appellant said “roll them”.[53]  Relevant matters to arise were as follows:
  1. the appellant appeared drunk when at the bar; he was slurring, uneven on his feet; he was missing the cue ball and knocking balls off the table;
  2. when she saw Mr Quayle and the female they were loud but it did not strike her that they were arguing; that was the impression she had when the female started running; she did not hear the female yelling at the male; “it wasn’t until after that I realised they were arguing.  I assumed that they were drunk and loud”;[54] she was confronted with the fact that in previous evidence she had said they were arguing and she could hear anger in the female’s voice, but said she could not recall giving that answer;
  3. the confrontation happened very quickly; when the appellant confronted Mr Quayle he said something to Mr Quayle about the female running away from him;[55] that was something like she was running fast;[56]
  4. at one point Mr Quayle had swung the appellant round and onto the ground; the appellant used his momentum to swing Mr Quayle onto the ground;
  5. she could recall seeing the appellant’s right wrist in the crook of his left elbow, which was on the ground;
  6. it was put to her, and she denied, that the appellant was yelling at Mr Quayle to stop, give up, stop struggling and “Don’t even try that”;[57] and
  7. it was put to her, and she denied, that Mr Hansen had said to the appellant “Don’t kill him” and the appellant replied “I wouldn’t”, and that Mr Hansen told the appellant “That’s enough”.[58]

Evidence of Mr Hansen

  1. Mr Hansen was an indemnified witness.  He said that he and the appellant had drunk a lot of beer at the bar, and when they left the appellant “was drunk and he was a bit agitated, but he seemed otherwise okay”.  After leaving the bar they went to Ms French’s unit where they consumed cannabis.  He was “still feeling aware of my surroundings”.
  2. He described encountering Mr Quayle and the female, walking together.  As they approached them the female then distanced herself from Mr Quayle and ran across the road.  He did not hear anything said between them.  He said to her “Are you in a hurry?” but could remember her replying but not what she said.
  3. Immediately before the assault the appellant “was agitated again and it seemed like he wanted to get into a fight”.[59]  As they were walking up the street the appellant was punching his right hand into his left hand with a closed fist.[60]
  4. The appellant was in front of them and he heard Mr Quayle say, “What the fuck was that, cunt?”  He looked up to see the appellant and Mr Quayle exchanging punches.  They eventually formed a struggle on the ground, each trying to get a chokehold on the other.  Then the appellant managed to get a better chokehold on Mr Quayle and “started choking him with what I believed was his left arm”.  Mr Quayle was on his back, on top of the appellant.  Suddenly one of his arms went limp.[61]  When the appellant let go Mr Quayle was lying face down; he “turned as [the appellant] went to get off him”.  When Mr Quayle went limp Mr Hansen said “Stop, Jake” to the appellant.
  5. As he was choking Mr Quayle the appellant was saying “Die, mother fucker, die”,[62] followed by “scrub” or “grub”,[63] that being a derogative term.  He was using an angry voice and appeared frustrated and agitated.  The appellant’s “right arm was supporting his left arm to get a better grip”.
  6. They left and the appellant disposed of his shoes in a bin.  After having gone home they drove past where the assault happened “To see whether the man was dead or alive”.  Police were there and a covered body.  They drove to a spot where he and the appellant burned their shirts.  They drove back and Ms French retrieved the appellant’s shoes.  They drove to a place where their shorts and the appellant’s shoes were thrown into the mangroves.
  7. In cross-examination Mr Hansen largely adhered to that account.  Relevant matters to arise out of cross-examination were as follows:
  1. by the time they left the bar the appellant was “very drunk”;
  2. at some point he said to the appellant that “if shit got real, I have your back”; he could not recall the response;
  3. the appellant walked ahead of them just after the female had gone past;
  4. Mr Hansen was unsure where the various blows landed when the appellant and Mr Quayle were exchanging blows;
  5. when Mr Hansen said “don’t kill him” the appellant responded “no, I wouldn’t”, after which Mr Hansen said “That’s enough”; and then the appellant stopped;[64] and
  6. after the appellant stopped Mr Hansen went to put Mr Quayle in the recovery position but he “was told let’s go”.[65]
  1. In re-examination Mr Hansen said: “As [the appellant] was saying, “Die, motherfucker.  Die”, I was saying, “Please don’t”, and this was all before the man’s arm went limp”.[66]

Evidence of the appellant’s friends– Dulieu, Dale and Vick

  1. Mr Dulieu said he knew the appellant, Ms French and Mr Hansen.  On 26 February 2015, the appellant told him to look at the news.  He did so, and asked the appellant what had happened.  The appellant responded that “he killed someone … Just lost it”.[67]  In cross-examination he said he asked him, “What were you thinking,” and he said, “I wasn’t thinking straight.  I was drunk.  Just trying to make my way home”.[68]
  2. Mr Dale said that on 26 February 2015, the appellant arrived home at about 3 am, in his underpants.  The appellant told him that “he’d killed someone that night out in the town”.[69]  He asked the appellant why he did it, and he answered that he did it “because he was angry and … in a rage”.[70]  He was not cross-examined.
  3. Mr Vick said he had been drinking with the appellant on the night in question, and he appeared drunk.  However, he said they only had two drinks in no longer than a couple of hours.

Evidence of Mr Quayle’s friends - Griffiths and Hopkins

  1. Mr Griffiths knew Mr Quayle.  He said that on the night in question he and Mr Quayle had been at a bar.  A girl that he thought was Mr Quayle’s girlfriend was there.  She and Mr Quayle were drinking and dancing together.  She was affected by alcohol, “quite clearly, visibly drunk”, and “clearly needed looking after”.
  2. Mr Hopkins said he knew Mr Quayle and his girlfriend.  On the night in question he was at a bar with them.  There was no trouble between them.  When they left, they were all quite drunk, but Mr Quayle less so.[71]  He was not cross-examined.

Evidence of police officers

  1. The investigating officers gave evidence.  The main document they identified was the recorded interview with the appellant, conducted on 28 February 2015.[72]  The investigation was outlined, various photographs and the CCTV footage identified, and plans produced.
  2. A police officer gave evidence that he was patrolling on the night in question.  He arrived on the scene after the ambulance paramedic.  He located Mr Quayle’s backpack and bike helmet nearby.  The backpack was unopened.

Forensic pathologists’ evidence

  1. Dr Bottrill gave evidence as to his examination and findings.  He found; (i) an area of bruising over the left forehead, consistent with blunt force contact; (ii) multiple areas of bruising over the left cheek, also consistent with blunt force; (iii) bruising and abrasion over the bridge of the nose, with lacerations; (iv) swelling and bruising over the upper outer right eye socket; (v) bruising over the right side of the head; (vi) grazing to the right elbow; and (vii) a graze to the base of the fingernail of the left middle finger.
  2. Dr Bottrill also gave evidence of internal investigations which revealed a number of areas on bruising consistent with blunt force contact.  The white of the left eye had a fine area of haemorrhage, which could be caused by compression of the tissues of the neck.  He explained that “if there is pressure applied, particularly over the sides of the neck, and it’s continuous and it either stimulates a structure that can be found on either side of the neck called the … carotid body, alternatively if it causes an obstruction via the flow to or from the brain … then that can result in loss of consciousness … [and] the heart either changing its rhythm, slowing down, even stopping completely.”[73]
  3. He said constriction of the windpipe could result in impairment of blood flow, and the inability to get enough oxygen into the bloodstream.  The bruising in this case was likely to be caused at about the time of death.  Mr Quayle’s heart was relatively large and the wall of the major chamber was a bit thicker than normal, and the arteries of the heart showed very significant thickening.  Dr Bottrill said the narrowing of the left anterior descending artery was “severe”.  That meant that it was possible that a stressful event could cause the heart rate to increase, causing chest pain and shortness of breath, and eventually stop the heart.
  4. There was bruising to the strap muscles over the front of the neck and between the collarbones, consistent with blunt force trauma.  He said: “this extent of head injury … can result in death, particularly, again, if a person is rendered unconscious and has an obstruction of their airway as a consequence to that”.[74]
  5. As to the cause of death, Dr Bottrill said that there were at least three explanations: (i) the head injury; (ii) the underlying heart disease with the severely narrowed arteries; and (iii) neck compression.  All three were consistent with the findings.[75]  Dr Bottrill said his own view was that the head injury was the most likely explanation, but he could not say with sufficient confidence that the other two could be excluded.  It was possible that all three combined together.  As a result the cause of death was undetermined.[76]
  6. In cross-examination Dr Bottrill said: “Based on the autopsy findings, the most likely … explanations that are conceivable based on the positive findings of the autopsy were of head injury or underlying heart disease”.[77]  He agreed that blunt force trauma and severe heart disease causing fatal arrhythmia were equally reasonable possibilities as to cause of death.[78]
  7. Dr Bottrill also agreed that Mr Quayle had severe heart disease which was such that death could have resulted at any time, and scarring around the blood vessels of the heart.[79]  The CCTV showed he had been running for a period of minutes, and Dr Bottrill agreed that would be sufficient to increase the risk of sudden death due to heart disease.[80]  Dr Bottrill agreed that the death could be explained by a combination of heart disease, the level of intoxication and physical exertion through running.[81]  However, Dr Botrill said that he would have expected Mr Quayle to have collapsed or complained of shortness of breath or chest pain in such a case.[82]
  8. Ultimately Dr Bottrill expressed his view as to cause of death this way:[83]

My own view is it’s the combination of pre-existing stress related to the jogging, with then the added stress of both the emotional stress of the physical assault, the pain associated with the sustained injuries, and if neck compression did, in fact, occur, that’s a further stressor on top.”

  1. Dr Duflou was called by the defence.  His evidence was based not on a first-hand examination, but looking at Dr Bottrill’s reports.  However he said that was no disadvantage.  He agreed with the undetermined cause of death given that there were multiple reasonable possibilities.
  2. As to the evidence of injury to the strap muscle, he said that it really raised doubt, at least in a forensic pathologist’s mind, as to whether there had been an episode of significant neck compression which had resulted in death.[84]  He thought that it was an unlikely cause of death, though he could not exclude it.[85]  He did not think that this was a case where the neck compression was so prolonged that it caused brain damage.
  3. Dr Duflou’s ultimate opinion on the cause of death was; (i) a head injury was possible but problematic; there was no evidence to support a finding that a head injury was the substantial cause of death;[86] (ii) heart disease was a possibility; it was very severe but Dr Duflou thought that Mr Quayle probably did not know about it; (iii) stress on the heart was a possibility; a verbal argument could raise the chance of a heart attack;[87] but Dr Duflou was uncertain as to whether the fight could have had an impact.[88]
  4. Dr Duflou could not exclude, as a reasonable possibility, that the death could be explained by a combination of running, heart disease and intoxication.[89]
  5. In cross-examination Dr Duflou said:
  1. that a heart in the condition this was in would have an increased likelihood of problems if it was working harder at a time of high demand for performance; his view had been formed without taking into account Mr Quayle’s activities prior to the assault;
  2. competent pathologists will, in general, have an undetermined cause of death rate  of about 5%;
  3. the blows to the head in conjunction with an altercation or physical exercise would have put significantly increased pressure of the demand for oxygen; a release of adrenalin would increase that;
  4. research showed that in moments of high drama, particularly involved restraining or physical altercation, it is 30 to 70 times more likely that death will result to a cardiac incident compared to somebody who is sedentary;
  5. the physical altercation was a significant indirect cause of the death;
  6. in general terms, if there was full compression of the carotid arteries supplying oxygen to the brain, loss of consciousness could follow in 10 to 15 seconds;
  7. did not exclude that neck compression played a role in the death; and he did not exclude that the petechial haemorrhage[90] was caused by the head injury;
  8. the combination of head injury, compression of the neck and increased exertion because of the violent altercation, could have caused the death; each was a possibility in its own right; and
  9. he disagreed with Dr Bottrill that the head injury was the most likely cause of death; he agreed with Dr Bottrill that the application of force to the neck can result in the heart stopping.

Evidence of the paramedics

  1. Mr Bodsworth was an ambulance paramedic who attended on the night.  He arrived to find another man doing resuscitation on Mr Quayle.  He saw that Mr Quayle was obviously deceased.  The tests they did on the spot confirmed that.

Evidence of Ms Stowe – corrections officer

  1. Ms Stowe said she overheard the appellant saying to another person that: “You know that fella on Spence street, the one that was killed?  That was me.”  He said that he “king hit him, he fell to the ground and then he choked him out”.[91]  When confronted with her previous statement in which she attributed to the appellant that he had “punched” him, Ms Stowe said punched him “or hit him”.

Formal admissions

  1. There were a number of formal admissions made and tendered for the jury:[92]
  1. the first voice heard on the phone call dated 11 June 2015 was that of the appellant;
  2. the body examined by Dr Bottrill on 26 February 2015 was that of Mr Quayle;
  3. a Mr Ericson (deceased) came across the body of Mr Quayle on Spence Street, lying on the grass face down with one foot hanging over the gutter onto the road;
  4. Mr Ericson gave police an account and his '000' call was recorded; the call to '000' was made at 3.18 am; Mr Ericson remained there performing CPR until emergency services arrived; he said to the '000' operator that he, Mr Ericson, was, “off his face”; he said in a statement the next day that Mr Quayle was lying so the front side of his face was on the grass, and Mr Quayle was wearing a backpack; at some point he shook him by the backpack/shoulder area and saw his face; he tried to speak with Mr Quayle and saw he had a bloody face and a swollen right eye when he turned him over; he tried unsuccessfully to find a pulse; he felt warm to touch when touched on the neck and wrist; his lips were blue; although realising Mr Quayle was dead, Mr Ericson pulled the phone and wallet out of Mr Quayle’s pocket to try and contact somebody; he phoned '000' from his own phone and dropped Mr Quayle’s phone and wallet on the grass next to Mr Quayle; he placed Mr Quayle in the recovery position whilst on the phone to '000', then as directed placed him on his back and commenced CPR;
  5. the route that the deceased took on foot between P.J. O’Brien’s on Shields Street to Bunda Street is approximately 1 km in length;
  6. CCTV cameras 38, 39, 41, 168, 43 and 45 are all synchronised and display the same time;
  7. the approximate distance between camera 38 and camera 45 is 192 metres;
  8. the deceased took approximately 1 minute and 55 seconds to travel the distance between camera 38 and camera 45; and
  9. a review of the CCTV footage provides that: (i) camera 38: the deceased starts to run at 02.24.30; he thereafter alternates between walking and running; (ii) camera 41: the deceased can be seen running at 02.24.45; (iii) camera 168: the deceased starts to run at 02.25.5, and runs out of frame at 02.25.15 towards the intersection of McLeod and Spence Streets; (iv) camera 43: the deceased can be seen running; the deceased runs out of frame at 02.26.13, and is travelling west along Spence Street; (v) camera 45: the deceased can be seen walking west along Spence Street at approximately 02.26.44; (vi) camera 45: at approximately 02.36.25, Ms French, Mr Hansen, followed by the defendant, can be seen walking east along Spence Street.
  1. Another admission was as to the evidence of Ms Lievesley (the female with Mr Quayle).  It was in these terms:[93]

That a Samantha Renee Lievesley in February 2015 was 23 years of age.  On Wednesday the 25th of February 2015, she finished work at 10.45 that evening and went to the peer.  On this night, she was wearing green loose-fitting like hippie pants, a purple singlet and black shoes with white laces and a white sole.  She was carrying her green-coloured bag in the shape of a dinosaur.  At PJ O’Brien’s at some time, Philip Quayle said to her something like, “You’re drunk.”  She said, “I know.”  He said, “Time to go.”  She said, “Yep.”

She remembered walking out of PJ O’Brien’s with Philip, Matt and Ryan.  They were at the front, where everyone has cigarettes, and she remembered Philip trying to ring her housemate, Wei Ling.  She remembered Philip said that she didn’t answer her phone.  She remembered that they started walking home.

So if you walk out of PJ O’Brien’s, they went left and followed this street all the way down to Cairns Central Shopping Centre.  She remembered standing at the corner of this street and McLeod Street.  She remembered she just wanted to run, so she ran across McLeod Street to Cairns Central Shopping Centre and said, “Come on, Phil,” and she just ran.

She then turned left toward Spence Street.  When she got to the corner, she thought Philip was behind her.  She then heard Philip call out, “Sammy.”  She remembered only getting to the corner of McLeod and Spence Street and didn’t remember anything after that and could only remember waking up later that morning at Philip’s house.”

The appellant’s interview

  1. The appellant was interviewed on 28 February 2015.  The video of that interview was played to the jury.  In the course of it the appellant made a number of statements about his involvement in the assault on Mr Quayle.  The essential features are:
  1. at first he lied about being involved, stating that he had gone home to bed at about 1.30 am, waking up at 6 am;[94] and he lied about wearing thongs on that night;[95] he said he did not go near Spence Street;[96]
  2. he and Mr Hansen were at the bar playing pool, where they consumed about nine jugs of beer between them; then they went to Ms French’s place;[97]
  3. he rated himself, at the time when he left the bar, about seven or eight out of ten on a scale of drunkenness, where ten is the drunkest he had ever been;[98] but he denied he was so drunk as to not remember something, saying “Nup, especially if I murdered someone.  I’d definitely remember that”;[99]
  4. he said he was “not capable of it” referring to the murder;[100]
  5. he continued to deny his involvement even after being told that police had spoken to a number of people including Mr Hansen and Ms French;[101] when showed his shoes and shorts he denied they were his;[102]
  6. when confronted with details of his partner’s text messages to him, that showed he was elsewhere than he said, the appellant finally gave in:

“The truth is; I saw him.  I saw him chasing his girlfriend.  I whacked him.  I didn’t expect to kill him.  That was it, done. … Yeah, I did it.  I didn’t - I didn’t expect for him to die.  Well, we hit each other.  I had too much to drink and then that’s - the whole reason I started was because I saw him chasing a chick, I thought he was trying to harm her, so, yeah, that was it.  He was breathing when I left and then -”[103]

  1. he then admitted that the shoes and shorts were his, and that he disposed of the shoes first in a bin, burned his shirt and threw his shorts and shoes in the mangroves; his second account was:[104]

“… that's where I saw that chick running … with that bloke chasing her, and that’s where, … because I hate …. people that try and hit chicks and shit, oh, it pissed me off and I smacked him, and we punched on for a bit, and then we both got each other headlock, and he nearly got me.  We were - we got each - I got him, and when I left I saw him roll over.  I know he was still alive probably, he was still breathing or something.  And … we left, and I chucked me shoes and shit in the bin, changed into a singlet, and that was it.”

  1. when asked why his shoes and clothes were in the mangroves he said: “Because I was scared.  I don’t know, I just – I didn’t mean to murder – I didn’t mean to kill him.  I - ‘cause I was scared and then – yeah”;[105]
  2. he said when he first saw Mr Quayle and Ms Lievesley:[106]

“I heard sort of arguing sort of thing, and the chick was sort of crying.  Like she ran past and, yeah, I just knew something was going on.  I saw him grab her and … before she started running and then, yeah, I didn’t see her since.  I never – didn’t see her again. … He grabbed her like with her - like grabbed her arm and tried swinging her around, and then she like – she started running. … they were just yelling …”.

  1. when asked what Mr Quayle was doing after Ms Lievesley had run past, the appellant said:[107]

“Oh, he was - well, he sort of moved to where I was moving.  That’s – that’s – that’s why I thought that he was going to do something to me, and that’s - yeah, that’s why I king-hit him. … I didn't king-hit him, I just-- … That’s why I hit him. … Yeah, I didn’t mean to [use the word king-hit].  I just hit him in the nose I guess, or mouth, somewhere.  I know it was just on the face somewhere, and then that’s when we got into the – the wrestling thing. … He tried picking me up and slamming me, and he didn’t – couldn’t do that, so he got me in a headlock, and I got him in a headlock, and it was just tussling from there.  And then he let go, and then he sort … he sort of tapped me as in like give up, and I let go about a second or two after, but - yeah, I was sure he was still breathing when I left. … I didn’t know if he was like just - I let go about a second or two later, and I don’t know if he was just trying to get me again or what, so … as I let go he sort rolled on to his back or some shit, rolled on his gut, I don’t know, and I just got up and left.”

  1. he described his attitude when walking with Mr Hansen and Ms French as “agitated”, and explained that was because “just everything about my brother and shit popping up again”;[108] that was a reference to what he told police at the start, that his brother had died three weeks before and a friend had died two weeks before;[109] he said he was angry, upset and pissed off;[110]
  2. he gave his sunglasses and wallet to Ms French “because he looked like he was trying hit – he was look - when he was walking towards me he looked pissed off and I thought he was going to do something”; “Yeah, because when I - when I walked cross to let her like run past he walked across to where - where I was, like so he went like that...with me basically…. From my years of experience that means someone’s going to punch, or do something to you. … Someone’s going to punch me, or something.”[111]
  3. he said he did not think that he said anything like “let’s roll them”; he could not remember saying anything because “I was too drunk”;[112]
  4. Ms Lievesley was crying when she ran past; then when he approached Mr Quayle: “I must have thought that he was going to swing at me, so I just hit him first”;[113]
  5. he got Mr Quayle in a “master lock”, in which he interlocked arms; at that point Mr Quayle was on top of him, facing away;[114]
  6. when asked if he said anything while he had Mr Quayle in a headlock, the appellant said:[115]

“I’m pretty - I - I know I didn’t say “die”.  I’m pretty sure I said something like, “fucking, are you going to stop, or are you going to - you know, do you quit” or some shit like that. … I’m pretty sure I didn’t say “die”.  Oh, I guarantee you.  I never - never intend to kill anyone in a fight. … I know I said “motherfucker”.  I don’t – I’m - I’m pretty sure I said, “Calm down motherfucker” or-- some shit like that.  I didn’t like-- I didn’t - yeah, I know I definitely didn’t say “die”.  I know - it was - I know I definitely said “motherfucker”, but I didn’t say “cunt” - ah “die”.”

  1. as soon as he let go he “just got up and went”;[116]
  2. he said that “I notice when I am drinking I do punch harder”;[117]
  3. as he left he “thought he was still - from what I thought and heard - oh, what I saw, he was still moving, he was still breathing”;[118] and
  4. when asked to explain his actions he said: “ I don’t know, accidentally killed someone.”[119]

Submissions

  1. Ms Ryan QC, for the appellant, submitted that the complications of the causation issue in this case meant that the Crown had to rely on the entirety of the assault upon the deceased as the acts causative of death.  Further, when regard was had to a number of aspects of the evidence, the verdict could not be sustained because the appellant did not hold the intention to kill or to do grievous bodily harm throughout the entirety of the assault.  The aspects relied upon, both individually and cumulatively, were:
  1. the appellant’s statements to the effect that he did not intend to kill the deceased and that he accidentally killed the deceased;
  2. the deceased was a stranger to the appellant;
  3. Ms French’s evidence of the appellant’s statement, before the assault, “let’s roll them”;
  4. the appellant’s admission to his friend during the recorded telephone conversation from prison that he “went to roll this cunt for his money”;
  5. Ms French’s evidence of increasing aggression in the appellant the more the deceased defended himself - indicating a change in the appellant’s state of mind;
  6. Ms French’s evidence that the appellant “lost it” when he got on the deceased’s back - indicating a further escalation in the appellant’s violence and a further change in state of mind;
  7. Mr Hansen’s evidence that when he told the appellant not to kill the deceased he said he wouldn’t; and
  8. the extent of the injuries - in that they were not as serious as those ordinarily seen in cases of fatal head injuries or fatal strangulation.
  1. On the issue of the reasonableness of the verdict, it was acknowledged that the questions asked by the jury about the necessary duration of the intention,[120] demonstrated that they understood the facts relevant to the issue.  It was also accepted that the learned trial judge spelt out the alternatives for the jury, namely, that the assault commenced with an intention less than an intention to kill or do grievous bodily harm, or with no particular intention at all.  However, it was submitted that the jury could not exclude the hypothesis that during the first phase of the assault the appellant’s intention was to rob, not to kill or do grievous bodily harm, or that it was without any intention at all in terms of the level of harm to be inflicted.
  2. For the Crown it was submitted that there was no contention that the jury could not be satisfied beyond reasonable doubt that the appellant’s actions were a significant or substantial cause of the death, or that his actions were unlawful.  The learned trial judge expressly directed the jury that it was necessary that they be satisfied that the appellant held the requisite intention to kill or do grievous bodily harm during the entirety of the physical action, from the first punch through to the hold around the neck.  The further directions to the jury, in response to a note received from the jury, also made this clear.  Further, apart from post offence conduct, the jury were directed that they were entitled to have regard to the conduct of the appellant, before, at the time of or after the appellant’s actions.  It was open to the jury to reject the appellant’s accounts that denied the intention.
  3. It was submitted that it was sufficient to prove that the appellant held the intention to do grievous bodily harm throughout the assault.  The particular matters raised by the appellant were insufficient to leave open doubt as to intention, for example:
  1. the jury could reject exculpatory statements by the appellant;
  2. even if the appellant and Mr Quayle were strangers the appellant exhibited a willingness to engage in gratuitous violence towards him;
  3. the expression “roll them” does not necessarily mean rob, or only rob, and in any event did not dictate the level of violence; in any event an intention to rob was disavowed by the appellant; an intention to rob was not mutually exclusive from an intention to cause grievous bodily harm; robbing  was the purpose of the assault but then one looks at the evidence to see whether the jury could be satisfied beyond reasonable doubt of the requisite intention;
  4. the appellant commenced the assault without warning; faced with resistance, the fact that the appellant may have increased the level of violence does not mean lack of prior relevant intention;
  5. whatever Mr Hansen said about the appellant’s response was a matter for the jury to judge in light of the expressions by the appellant to Mr Quayle, to “die”; and
  6. the evidence of the injuries showed many to be the result of blunt force; that the deceased exhibited a lesser level than others was not determinative of intention.
  1. It was further submitted that the jury could conclude the requisite intention was there from: (i) the level of aggression and the appellant’s preparations for the assault; (ii) the assault commenced without warning, with repeated punching to the face and the initial hit described as a “king hit”; the master lock was applied knowing it would render the victim unconscious, and that was maintained until Mr Quayle went “limp”; (iii) the repeated yelling to “die”; (iv) the post offence conduct of smacking the back of his hand and saying “Smacking bitch is out”; (v) nothing was taken from Mr Quayle; and (vi) what the appellant said to others later.

Discussion

  1. The only basis upon which this ground was advanced was as articulated above.  Ultimately, the prosecution case against the appellant was unusual due to the evidence from the forensic pathologists who were not able to identify the cause of death from the possible causes that could have been operative during the appellant’s assault on Mr Quayle.  That had the consequence that, if the jury were satisfied beyond reasonable doubt the appellant caused Mr Quayle’s death, the prosecution had to prove that, at all times during the altercation from the first punch until just before the appellant let his hold on Mr Quayle’s neck loosen, the appellant had at least the intent to do grievous bodily harm to Mr Quayle, in order to prove the offence of murder beyond reasonable doubt.
  2. As the learned trial judge in the summing-up had directed the jury:

“You’d also bear in mind, in addition to the question of his intention being affected by intoxication – also bear in mind that this was a moving event that started with a punch – it didn’t start with a head lock – it started with a punch.  And much may turn upon your view of whether or not what followed was always, pretty much, part of a plan that he was going to go with an assault, regardless of how Mr Quayle defended himself.  Or whether or not what followed was an unpredictable course of events because of the way in which Mr Quayle, perhaps as he may have been told to do, depending on your view, tried to defend himself.  And that this – you may consider this may colour our view as to whether or not he really did hold the intention to kill or do grievous bodily harm during the assault.

And remember, it’s necessary you’re satisfied that he held this requisite intention to kill or do grievous bodily harm during the entirety of his physical action.  That is to say, from the beginning to the end – from the first punch through to the hold around the neck.  I say that because, as I explained to you earlier in the piece, the prosecution case is that while it can’t specifically discern which of the physical acts individually were necessarily a discrete cause of death, but taken collectively, all of his actions – his physical deeds and what he was saying, taken together, in combination – would lead you to conclude that the totality of his actions were such as to amount to a substantial cause of death.

Bear in mind, in your reasoning about whether or not the requisite intention existed, that this is an example of circumstantial evidence reasoning.  So again, bear in mind, the principles I’ve explained.  It is necessary, not only, that you be satisfied of the inference that he intended to kill or do grievous bodily harm, but that any competing reasonable hypothesis or inference consistent with innocence, is excluded beyond a reasonable doubt.  The two most obvious, of course, are that he held no particular intention at all in the state he was in, and the other is that if he did hold such an intention, it was not an intention to go so far as to cause death or grievous bodily harm, but merely to assault, and/or rob.”

  1. The learned trial judge directed the jury expressly that the appellant’s conduct described as consciousness of guilt evidence could be relied on by the prosecution only in order to prove (in conjunction with the rest of the evidence) the offence of manslaughter.
  2. We intend, firstly, to address the separate features of the case relied upon for the appellant, but, as will become apparent, the resolution of this ground requires a broader consideration.

Appellant’s statements that he did not intend to kill

  1. There was ample reason for the jury to conclude that the appellant was a liar, given the elaborate lies by him at the commencement of his interview.  It was only when confronted by the text messages from his partner that his denials of involvement unravelled, and then he admitted many things which, to that point, he had previously been denying.  The appellant’s evasive nature is demonstrated by the fact that at a particular point in the interview, when asked whether he had said anything to Mr Quayle, the appellant proceeded to recite what he did not say, specifically denying that he used the word “die” and did not say “cunt - ah die”.  At that point police had not revealed what they had been told by Mr Hansen and Ms French as to those matters.  It was open the jury to reject any exculpatory statements by him.

The appellant and Mr Quayle were strangers

  1. The fact that the appellant and Mr Quayle were strangers does not, in our view advance the matter for the appellant.  The evidence before the jury was that the appellant was agitated, angry, upset, and had announced an intention to “roll” Mr Quayle for his money.  Moreover, he had engaged in a number of steps to put himself in the best position to attack Mr Quayle, by handing his sunglasses and phone to Ms French and moving his position on the road and footpath so that he would directly confront Mr Quayle.  Later he told Mr Dale that he killed Mr Quayle “out of rage”.  None of that would necessarily suggest any reticence on his part to engage in gratuitous violence against a stranger.  To the contrary, the jury may well have considered that given the appellant’s angry state, and his announced intention to “roll” Mr Quayle for his money, his preparedness to inflict violence might have been encouraged by the fact that he was a stranger.

The appellant’s statement “Let’s roll them”

  1. The contention here was that this announced an intention to rob, rather than kill or do grievous bodily harm.  It is true that it announces an intention to rob.  However, that does not mean that because one intention was announced the other did not exist.  The intention to rob and the intention to inflict grievous bodily harm in order to achieve that result are not necessarily exclusive.  The jury could well accept that having announced that he intended to rob Mr Quayle, that fact and his preparations for the assault indicated that he intended to inflict whatever level of harm was necessary in order to achieve that purpose.  In other words, he intended to inflict grievous bodily harm if it was required.
  2. The jury had the evidence of the way in which the appellant prepared for his assault on Mr Quayle.  He got rid of some of his loose belongings (sunglasses and phone), was punching his right fist into his left hand, changed position so that he would intercept Mr Quayle, and then launched a flurry of punches to the head, at least two of which were administered while holding Mr Quayle’s head with one arm and punching with the other.  The appellant himself used the phrase “king hit” in the interview,[121] and to another prisoner.[122]  Add to that the evidence of his angry, agitated and “pissed off” state, and his descriptions of what he did, namely killed “out of rage” and “just lost it”,[123] there was an ample evidentiary foundation for the jury to reason that the appellant was prepared from the outset to cause grievous bodily harm, either out of pure rage or to achieve the purpose of robbing Mr Quayle.

Appellant’s admission that he “went to roll this cunt for his money”

  1. This piece of evidence falls under the same reasoning as above.  Whilst defence counsel had (at one stage) the view that this could be characterised as the distasteful boasting of an immature youth, the fact is that when Ms French gave similar evidence,[124] that evidence was not challenged.  The jury were therefore entitled to understand that there was no contest as to the fact that the appellant announced an intention, prior to the assault commencing, that he intended to “roll” Mr Quayle in order to steal from him.

Ms French’s evidence of increased aggression in the face of resistance

  1. It is true to say that Ms French described increased levels of aggression by the appellant when Mr Quayle resisted the attack upon him.  However, that does not mean that an intention to do grievous bodily harm was absent when the attack commenced.  It simply means what she said, namely that the appellant’s level of violence became worse in the face of resistance.  The ultimate demonstration of that, the jury may well have thought, was that at the point the appellant administered his “master lock” or chokehold, he commenced repeatedly yelling combinations of the word “die” (according to Ms French), “die, cunt, die, cock sucker”, “you die cunt”, and (according to Mr Hansen), “die mother fucker, die” and “die grub”.  It was open to the jury to conclude from that evidence that at the point the chokehold was applied, the appellant had an actual intention to kill Mr Quayle.  They could take the view that even if the intention to kill was only manifested then, it had existed before, or had grown out of a previously held intention to do grievous bodily harm.  The progression from one state of intention to the other would be consistent with the appellant having always intended to administer grievous bodily harm in order to achieve his purpose in assaulting Mr Quayle in the first place, and having elevated his response in the face of resistance.

Ms French’s evidence that the appellant “lost it”

  1. This evidence falls within the same reasoning as above.  It was, in our view, open to the jury to reason that her description was simply an indication of the progression from a state of intention to do grievous bodily harm, to a state of intention to kill.  Relevant to that is the fact that Ms French’s description coincided in time with the appellant administering the chokehold and commencing to yell the word “die”.
  2. That progression of intention, commencing with the intention to do grievous bodily harm, is supported by some of the admissions by the appellant himself.  He said that as he was walking along, and before he came across Mr Quayle and Ms Lievesley, he was in an angry, upset and agitated state because of recent deaths, firstly of his brother who had died some three weeks before, and secondly of one of his friends who had died two weeks before.  The appellant said of those events, “it just got to me”.[125]  The jury had that evidence, and then the evidence of him announcing that he would “roll” Mr Quayle, at the same time punching his right fist into his left hand and moving deliberately to intercept Mr Quayle.  The escalation of violence to the point where Ms French thought he “just lost it” is not necessarily reflective of the requisite intention only being formed at that time.

Mr Hansen’s evidence that he told the appellant not to kill and the appellant said he would not

  1. The central difficulty with this contention is that all of these words were said after Mr Quayle went limp or, in other words, after the appellant had ceased his assault.  For that reason the jury could well have thought that if it reflected anything, it reflected a state of intention after the event.  However, the jury may not have been convinced about the quality of that evidence in any event.  Initially Mr Hansen maintained what he said was “stop”, but then accepted that he had said “don’t kill him”, getting the response “no I wouldn’t”.  He then said “that’s enough” to the appellant, and the appellant stopped the chokehold.[126]  In re-examination the evidence differed again so that the exchange happened after Mr Quayle went limp.  On that version, Mr Hansen said “please don’t” getting the response “I wouldn’t”.  There was no support from Ms French as to this exchange.  In that state of affairs, the jury may not have found that exchange compelling, let alone compelling as to any state of the appellant’s intention.

The extent of the injuries

  1. The contention here was that the injuries were not as serious as those ordinarily seen in cases of fatal head injuries or fatal strangulation.  The evidence from the forensic pathologist was that there were a number of injuries consistent with multiple applications of blunt force, including to the head.  There was also evidence as to the variations in the degree of injury that may be seen in a case of neck compression.  The fact that Mr Quayle’s injuries were less than had been seen in other cases was not, in our view, determinative of the appellant’s intention to inflict that level of injury.  Those injuries have to be seen in light of the fact that Mr Quayle’s underlying health issues may have meant that death resulted more quickly, notwithstanding a lesser level of physical injury than in other cases.  That is particularly so when one considers some essential features of the evidence of Dr Bottrill, who outlined the injuries found:
  1. bruising to the head, abrasions or grazing to the nose, swelling and bruising to the right eye socket, bruising to the right temple and ear;
  2. internal examination revealing bruising to the left side of the chin, right side of the temple and right ear, and left arm;
  3. bruising to the strap muscles of the neck;
  4. bruising over one part of the brain surface consistent with external injuries; and
  5. that he had “a significant amount of head trauma”[127] which was in keeping with “severe force” having been applied.[128]
  1. At the trial, it was common ground that the appellant was drunk at the time of the assault.  The prosecution case with respect to intent was that a drunken intent to kill or do grievous bodily harm could satisfy the requisite intent.  From the outset to the end of the altercation the appellant was in a rage, as shown by his actions in removing his glasses and phone before throwing the first punch at Mr Quayle, and his being shown in the video footage after the assault walking along still smacking his fist into his other hand.  The defence case with respect to intent was that the prosecution could not, in the context of there not being any evidence of extreme violence, exclude beyond reasonable doubt that the altercation was a result of “brainless aggression” and could not establish beyond reasonable doubt that the requisite specific intention was present, because the appellant was very drunk.
  2. The jury was alive to the significance of the issue of intent from the redirections they sought.  In giving those redirections, the learned trial judge emphasised the need for the requisite intent to be present for the duration of the altercation before the jury could be satisfied beyond reasonable doubt of the element of intent necessary for the offence of murder.  In response to the jury’s question “can intent of grievous bodily harm still be satisfied if no grievous injuries were sustained in the opinion of the forensic pathologists?”, the learned trial judge explained correctly:[129]

“The reference to grievous bodily harm in the requirement of intent to cause death or grievous bodily harm goes only to the mental element, namely, the gravity of the level of harm intended.”

  1. The learned trial judge explained further in giving the redirection that “the reference to grievous bodily harm is solely as an indicator of the minimum level of violence intended in order for the element to be satisfied and that is a consideration that relates to his state of mind”.[130]
  2. To the extent the jury accepted evidence that was relevant to the circumstantial case on the element of intent, it was a question of whether, on the basis of that evidence, they could be satisfied beyond reasonable doubt that the only reasonable or rational inference that could be drawn from that evidence was that from the start to the end of the altercation the appellant had at least the intent to do grievous bodily harm to Mr Quayle.
  3. For the purpose of the argument on this ground of appeal, the assault was divided into three stages, referred to by McMurdo JA in his reasons at paragraph [158].  The focus of the argument was on the first stage of the fight, as it was submitted by Ms Ryan QC that the jury could not reasonably exclude the hypothesis that during the first phase of the assault at least the appellant acted without an intention to kill or do grievous bodily harm, but rather to assault in a lesser way to steal, or without any intention at all when it came to the level of harm to be inflicted.
  4. There were disputed issues of fact to be decided by the jury in the prosecution’s case against the appellant.
  5. At paragraphs [128] to [137] above we have identified the evidence that could support the inference that, in the circumstances of the unprovoked assault on a stranger, the appellant’s intent was at least to cause him grievous bodily harm from the commencement, and for the duration, of the altercation.  Were there any other reasonable inferences open on that evidence, if that were the evidence the jury accepted?
  6. One important question of fact for the jury was the level of aggression shown by the appellant prior to commencing the assault on Mr Quayle.  It was open to the jury to accept the appellant’s initial description of his first action against Mr Quayle as a “king hit” (even though he then sought to withdraw that description in the course of the same interview) and the further statements he made in the course of his interview that he was “agitated”, “upset”, “pissed off” and “angry”.  That echoed what the appellant’s housemate, Mr Dale, said the appellant told him soon after he returned home after the event, that “he did it because he was angry and … in a rage”.  In the telephone call that was Exhibit 8, the appellant told his friend that he went to “roll” Mr Quayle “and then bashed him and choked him”.  Mr Hansen’s observation was that as they walked along the street approaching Mr Quayle, the appellant was “punching his right hand into his left hand with a closed fist”.  According to Ms French, when they first noticed Mr Quayle and Ms Lievesley approaching, the appellant said “let’s roll them”, and after the appellant handed her his sunglasses and phone, he positioned himself on the footpath, so he was directly in the way of Mr Quayle.  Ms French described how the appellant’s first punch struck Mr Quayle in the face, Mr Quayle stumbled back and the appellant walked up to him, put his arm behind the back of Mr Quayle’s head and punched him twice more in the head.
  7. The altercation then entered the second phase of “grappling”.  Ms French described that the more Mr Quayle seemed to defend himself, the more aggressive the appellant seemed to get compared to when he first punched him.  When the altercation was in the third phase, Ms French described that when the appellant jumped onto Mr Quayle’s back “it just seemed like he lost it”.
  8. Ms French’s description of increasing aggression on the part of the appellant as the altercation continued had to be considered by the jury in the context of the other evidence about the course of the altercation and the subsequent admissions by the appellant.  There was no resistance to the initial punches by the appellant, but thereafter Mr Quayle attempted to respond to the assault, so that the additional aggression matched the resistance.  It did not necessarily foreclose, in conjunction with the other evidence, the conclusion as to the level of aggression with which the appellant commenced the assault.  An articulated intent to rob Mr Quayle or to assault and rob him was also not necessarily determinative of the appellant’s intention at the commencement of the assault.  An intent to rob or to assault and rob could co-exist with an intent to do grievous bodily harm.
  9. The judgment of the plurality in Zaburoni v The Queen explained:[131]

“Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct.  As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code.”

  1. The plurality then referred to the need for the trier of fact to “be satisfied that the accused meant to produce the particular result”.[132]
  2. In Zaburoni, the High Court found the largely uncontested evidence did not support an inference that the defendant intended to transmit HIV to the complainant.[133]  The evidence instead supported an inference of reckless indifference on the part of the defendant as to whether he transmitted HIV to the complainant.[134]
  3. Reckless indifference (as to whether he caused grievous bodily harm to Mr Quayle) was not one of the competing inferences the jury was asked to consider in the appellant’s trial, as that was not consistent with the evidence.  The statements of the appellant made soon after the assault as to his rage and anger, and his description of his initial assault as a “king hit” and that he “bashed him” in conjunction with his actions before and during the first phase of the altercation, evidenced a level of aggression that supported the inference beyond reasonable doubt that he intended to do grievous bodily harm to Mr Quayle.  It was not a question of whether the appellant thought it was likely he would cause permanent damage to Mr Quayle, but whether, at the time he commenced the assault, he meant to cause him grievous bodily harm (whether he did so or not).  Once the conclusion is reached that there was evidence on which it was open to the jury to be satisfied beyond reasonable doubt that the appellant meant to cause Mr Quayle grievous bodily harm, that displaced any other competing inference of an intent to cause less serious harm or no intent.  Once satisfied that the appellant held that intent, the fact that he might also, at the same time, have had the lesser intent to rob, does not displace the conclusion that he held the requisite intent for the offence of murder.
  4. The jury had the undoubted advantage over this Court of seeing and hearing the witnesses at the trial, and in particular Ms French and Mr Hansen who witnessed the event itself.  This Court must be careful not to substitute trial by appellate court for trial by jury.[135]  Giving due regard to the role of the jury as the judges of fact and their advantage in seeing and hearing the witnesses at the trial, we are satisfied there was evidence that was open to the jury to be satisfied beyond reasonable doubt that the appellant had at least the intention to cause grievous bodily harm to Mr Quayle from the start to the end of the altercation.[136]
  5. This ground fails.

Disposition

  1. For the reasons outlined above, we would dismiss the appeal.
  2. McMURDO JA:  I would allow this appeal and substitute a conviction of manslaughter.  In my conclusion, it was not open to the jury to exclude the hypothesis that the appellant did the act which killed the deceased without an object of killing him or doing grievous bodily harm to him.  I would reject the appellant’s alternative argument, that there was miscarriage of justice by the jury hearing that he was on parole at the time of this incident.
  3. I gratefully adopt the summary of the evidence by Morrison JA and Mullins J.  As they discuss, each pathologist said that there were several possible causes of death: an injury or injuries to the deceased’s head, his pre-existing heart disease, a compression of his neck or some or all of those things in combination.  From that evidence, there was an issue for the jury as to whether it was proved that the appellant had caused the victim’s death.  There is no challenge to the jury’s finding in that respect.
  4. A consequence of that evidence, however, was that the prosecution case, as finally argued to the jury, was that the appellant may have killed the deceased at any stage of the altercation between them.  Therefore, the prosecution had to prove that throughout the altercation, the appellant acted with an intention to kill or to do grievous bodily harm.  Put another way, it had to prove that from the outset, the appellant acted with the object of effecting that result: death or grievous bodily harm.[137]  A reckless indifference as to whether that result would eventuate was insufficient.
  5. It is not artificial to describe the altercation as consisting of three stages.  In the first stage, the appellant punched the victim to the face and head, which was followed by some punching by both men.  In the second, the two wrestled, sometimes on the ground, while each was “trying to get a chokehold of each other” as Mr Hansen described it.  In the third, the appellant was on top of the victim, who was lying face down, and the appellant had his arm around the victim’s neck applying a choke hold.  It was in that third stage that the appellant was described by Ms French as having “lost it” and yelling “die, cunt, die, cocksucker”.  Similarly, Mr Hansen described the appellant then repeatedly saying words to the effect of “die motherfucker die” and “die grub”.  Plainly, that evidence could be understood as an indication of an intention to kill.  And it was also relevant to whether there had been that intention at an earlier stage.  But if the jury was satisfied that there was an intention to kill, or at least to do grievous bodily harm, by the end of the fight, they still had to consider the possibility that this intention had been formed only during the fight.
  6. In what follows, I will discuss an intention to cause grievous bodily harm.  On the facts of this case and as respondent’s argument appears to accept, there was no realistic possibility that an intention to kill, at the outset of the fight, was proved if an intention to cause grievous bodily harm was not.
  7. The term “grievous bodily harm” is defined by s 1 of the Criminal Code 1899 (Qld) to mean:

“(a) the loss of a distinct part or an organ of the body; or

  1. serious disfigurement; or
  1. any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.”

The prosecution case did not identify a particular type of injury which was said to have been intended.  Presumably, the case was put on the basis of paragraph (c) of that definition.  The jury was asked to find that, as he began to punch the victim, the appellant meant to cause him an injury of such a nature that it would be likely to endanger the victim’s life or to cause permanent injury to his health.[138]  The word “likely” in this context requires more than a possibility: it requires a substantial or real and not remote chance.[139]  Clearly the appellant intended to injure the victim, but more than that needed to be proved.

  1. What, if anything, did the appellant have to expect about the likely effect of the injury which he was intending to inflict?  In Wongawol v Western Australia,[140] there was a question of the interpretation of s 279(1)(b) of the Criminal Code (WA), which provides that a person is guilty of murder if the person kills another and:

“the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person …”

McLure P, with whom Buss JA and Mazza J agreed, said:[141]

“The expression “of such a nature” as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect.  That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life or would be likely to endanger life.”

The terms of s 302(1)(a) and the definition of grievous bodily harm in the Queensland Code are relevantly indistinguishable from the Western Australian provision.  I agree with the reasoning and conclusion in Wongawol, which, as McLure P said, is consistent with the principal judgment of the majority of the High Court (Callinan J) in Charlie v The Queen.[142]

  1. Consequently, the prosecution had to prove that the appellant subjectively intended to inflict not just an injury, but an injury so severe that, objectively viewed, it would be likely to kill or permanently damage the victim’s health.  Reprehensible as his conduct was, an unprovoked punch to the victim’s head was not of itself an act which demonstrated the requisite intention.  It was unlike, for example, an act of stabbing a person.  It is notorious that one punch can kill, but a punch does not necessarily reveal an intention to kill or to inflict such a severe injury that it would constitute grievous bodily harm.  In Queensland, that is recognised by the enactment of s 314A of the Code, by which a person who unlawfully strikes another to the head or neck, causing death, is guilty of a (different) crime.
  2. What then were the relevant facts and circumstances from which the jury could have been left with no reasonable doubt that, when he began to punch the victim, the appellant meant to produce the result of an injury which was grievous bodily harm?  There was evidence, which the jury was able to accept, that the appellant was in an aggressive mood, as his group was walking towards the scene of this altercation.  The appellant told police that he was then “agitated”, “pissed off” and “angry”.  Mr Hansen said that both he and the appellant were “quite drunk at that point”.  The assault of the victim was unprovoked and, contrary to an argument at the trial, not made in self-defence.  As he prepared to confront the victim, the appellant handed to Ms French his sunglasses and phone.  He punched the victim in the face and put his arm around the victim’s head whilst he punched him to the head twice more.  The victim was defending himself and at one stage managed to put the appellant on the ground.  But the appellant kept hold of him and swung him to the ground.  The appellant then jumped on to the victim’s back and put an arm around his neck in a choke hold.  It was then that the appellant yelled at the victim words such as “die”.  This continued until there was no further resistance from the victim.  The appellant then got off him.  Ms French said that the appellant then smacked the back of his hand and said “smacking bitch is out”.  The appellant’s group then left the scene, taking none of the man’s belongings.  The judge directed the jury that the appellant’s subsequent conduct was not probative of murder, as distinct from manslaughter.  The correctness of that direction is not in question.
  3. The appellant’s argument specifies the following circumstances from which it could be inferred that the appellant punched the victim without the necessary intent:
    1. the appellant made statements to the effect that he did not intend to kill the victim and that he had accidentally killed him;
    2. the victim was unknown to the appellant;
    3. the appellant said, immediately before the assault, “let’s roll them”;
    4. the appellant said to his friend during the recorded telephone conversation from prison that he “went to roll this cunt for his money”;
    5. according to Ms French’s evidence, the appellant showed increasing aggression the more the victim defended himself;
    6. again according to Ms French’s evidence, the appellant “lost it” when he got on to the victim’s back;
    7. according to Mr Hansen’s evidence, when he told the appellant not to kill the victim, the appellant responded he would not do so;
    8. the extent of the injuries were not as serious as those ordinarily seen in cases of fatal head injuries or fatal strangulation.
  4. The jury was not obliged to accept all of the evidence of the two eye witnesses, or of course what the appellant had said to others including the police.  But it is difficult to see how the jury could have acted upon the description by Ms French of the fight whilst rejecting that part of it which described the appellant’s increasing level of aggression as the fight went on and the victim was managing, for a while, to defend himself.  Similarly the jury could not have acted upon her evidence of what the appellant was yelling at the victim without accepting her description of the appellant, as he did so, as having “lost it”.
  5. The respondent’s argument addressed each of those matters identified by the appellant’s argument, by suggesting how each might be reconciled with an inference that the appellant acted throughout the altercation with the requisite intention.  However each of those circumstances must be considered in combination.  And most importantly, the question is not whether the evidence, upon which the jury may have acted, provided reasonable support for an inference that the appellant had the requisite intention.  Rather, it is whether that evidence provided no reasonable support for an alternative inference.  And it is incorrect to weigh the relative probabilities of competing inferences.[143]  If there was available a competing inference that the appellant had not acted at all times with the necessary intention, then it was not open to the jury to convict the appellant of murder.[144]
  6. Of course, the alternative inference must be a reasonable one.  In R v Baden-Clay,[145] the High Court said:

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’”

The High Court held that in that case, a competing inference as to what had occurred, consistent with the respondent’s innocence of murder, was not based upon any evidence, but was instead mere speculation or conjecture.[146]  The same cannot be said of the present case.

  1. On the facts as I have described them at [163], it could be rationally inferred that the appellant began this fight without a purpose of inflicting an injury so severe that, on an objective view, it would be likely to kill or cause permanent damage.  The appellant’s conduct could be explained as that of a man whose object was only to rob the victim (for which there was specific support in the evidence, particularly from the account of Ms French).  It might also be explained as the kind of purposeless violence, unfortunately not infrequent, which is perpetrated by angry and intoxicated young men against a stranger in a street.  It is also the experience of criminal courts that there can be an escalation of violence in the course of an altercation which begins without an intention to bring about the outcome which eventuates.
  2. Clearly, an intention to rob and an intention to do grievous bodily harm may co-exist.  Clearly also, the former may exist without the latter.  To say that they can co-exist is to suggest that there is an inference, rationally available from the evidence, that he acted with the requisite intent.  But again, the question is whether there is another inference which is open.
  3. It was not sufficient if the jury considered only that the appellant was minded to inflict whatever injury became necessary in order to rob the victim.  If the jury reasoned in that way, that was a finding about a potential for the requisite intent to arise.  What had to be proved was that everything which was done by the appellant had an object of (at least) inflicting an injury of the requisite kind.
  4. In my conclusion, either of those alternative hypotheses, as I have described them at [168], could be rationally inferred from the facts as the jury must have found them to be.  The appellant’s argument is not answered by showing how another inference, namely that the appellant acted with the requisite intent, was also open on that evidence.  Because hypotheses consistent with the appellant’s innocence of murder could not have been rejected, the jury’s verdict was not open.
  5. On the other ground of appeal, I am in substantial agreement with the reasons given by Morrison JA and Mullins J, so that my reasons may be stated briefly.
  6. The evidence of the conversation from the prison was damaging to the appellant’s case at the trial in at least two ways.  The first was that it revealed that he had just been released from prison when this event occurred.  The second was that it was an admission that he had approached the victim with an intention to rob him.
  7. There may have been a third way in which it was damaging, in that the appellant was recorded as laughing at the end of this conversation, which would not have endeared him to the jury.  But that was unlikely to have been significant, because of the view which the jury would have had of the appellant from other evidence anyway.
  8. The statement that he had intended to rob the victim was then an admission because the prosecution’s case, as the judge had explained to the jury at the commencement of the trial, then included an alternative argument of felony murder, under s 302(1)(b) of the Code.
  9. In those circumstances, it was understandable that defence counsel would argue for the exclusion of the evidence of the conversation, rather than seek to confine it, if possible, by an editing of the recording or by an admission of what had been said, apart from that which indicated that he had just been released from prison.  Either of those courses would still have left the jury with the evidence from this conversation that he had intended to rob the victim.  The course then taken was a rational one.
  10. It is not suggested that the judge should have ordered the recording to be edited.  He considered that it would not be practicable to do so and there is no criticism of that in the appellant’s argument.
  11. Of course, after the evidence had closed, and following legal argument, the prosecution said that it would no longer pursue a case of felony murder.  That meant that one of the damaging effects of the evidence, namely that it was an admission of an intention to rob the victim, no longer existed.  Indeed that statement became only favourable to the appellant’s case by its relevance to the question of intent.  By that stage, of course, the jury had heard the conversation and knew that the appellant had been on parole at the time.  Defence counsel did not then submit that the jury should be discharged.  There was instead a discussion between counsel and the judge about the way in which the statement of an intention to rob could be helpful to the appellant’s case.  When the recording was played to the jury, the judge directed them that they were not to impermissibly use the fact that the appellant had been in prison.  That was effectively repeated in the summing up , when the judge said:

“[W]e assess guilt in our system of criminal justice based on the evidence of what the person is alleged to have done, not based on knowledge that the person may have broken some other law at some other point in time.  That was especially important, earlier in the trial, for me to highlight when you heard evidence that showed, apparently, that he was out on parole, which may give rise to the inference that he must have committed some other offence in the past.  I repeat: you disregard that fact, as juicy and salacious as people who want to criticise the parole system might think it be; it is completely irrelevant because it cannot help you determine whether in this instance, for the offences charged here, he is guilty or not guilty.”

  1. That was a strongly worded and clear direction, of which no complaint is made in the appellant’s argument.  Instead, the argument is simply that there was a miscarriage of justice from a risk that the jury impermissibly reasoned that such a recently released prisoner was likely to have assaulted the victim with an intention to do grievous bodily harm or to kill.
  2. In hindsight, the appellant’s case may have been assisted if, having failed to have the evidence excluded, the appellant had admitted the content of the conversation apart from the references to his having been in prison.  That would have had the advantage of his imprisonment not being revealed to the jury.  On the other hand, it may have been considered to be helpful to the appellant’s case, if the jury was to be told of the content of this conversation, for the jury to hear the conversation in the hope that they would treat it as unreliable bravado.  In hindsight, that may or may not have been an error by the appellant’s trial counsel.  But ultimately an argument based upon an error by trial counsel must suggest that there was a consequent failure of the proper process of a trial.[147]  In my view it is not demonstrated that the appellant’s case was conducted in a way which could not be rationally explained.  There was no miscarriage of justice that came from not taking the course which is now said to have been necessary.
  3. For these reasons, I would allow the appeal, set aside the conviction of murder and substitute a conviction of manslaughter.  It would be for the trial judge to sentence the appellant for that offence.

Footnotes

[1]  According to Ms French.

[2]  According to Mr Hansen.

[3]  We have set it out as the jury heard it, from the audio tape (Exhibit 8).

[4]  AB 21.

[5]  AB 22.

[6]  AB 22.

[7]  AB 22 line 24 to AB 23 line 2.

[8]  AB 23 lines 17-35.

[9]  Paragraphs 13(a) and 14 of the appellant’s outline of the application; AB 354-355.

[10]  AB 24 lines 30-34.

[11]  AB 25 line 5.

[12]  [1987] 1 Qd R 239, 249.

[13]  [1949] AC 182.

[14]  AB 25 lines 17-25.

[15]  AB 25-27.

[16]  Appeal transcript T1-9 lines 14-32.

[17]  AB 801-802.

[18]  AB 805, 807.

[19]  AB 815.

[20]  AB 822.

[21] Nudd v R (2006) 225 ALR 161, [8]-[9] per Gleeson CJ; see also Callinan and Heydon JJ, [157].

[22]  (2002) 212 CLR 124; [2002] HCA 4, 134-135, [31]-[33]; internal citations omitted.

[23]  AB 224 and following.

[24]  AB 229 lines 16-25.

[25]  AB 234 line 19.

[26]  AB 234 line 42.

[27]  AB 235 lines 22-34.

[28]  AB 236 lines 13-24.

[29]  AB 244-245.

[30]  AB 111 lines 1-31.

[31]  AB 253 line 41 to AB 254 line 9.

[32]  AB 302 lines 22-45.

[33]  AB 311 lines 31-37.

[34]  AB 314 line 23.

[35]  AB 316 line 41 to AB 317 line 8.

[36]  AB 317 line 41 to AB 318 line 17.

[37]  AB 318 line 21 to AB 319 line 2.

[38]  AB 319 lines 7-10.

[39]  (2002) 212 CLR 124, [2002] HCA 46.

[40]  [1987] 1 Qd R 239, 249.

[41]  (2011) 243 CLR 400, [20]-[22]; see also M v The Queen (1994) 181 CLR 487, 493, 494.

[42] M v The Queen (1994) 181 CLR 487; (1994) 126 ALR 325, 493; internal citations omitted.  Reaffirmed in SKA v The Queen (2011) 243 CLR 400.

[43]  (1994) 181 CLR 487, 494; internal citations omitted.

[44]  (2016) 258 CLR 308; [2016] HCA 35, 329-330, [65]-[66]; internal citations omitted.

[45]  AB 37 lines 1-11.

[46]  AB 37, AB 66.

[47]  AB 38.

[48]  AB 38 line 39.

[49]  AB 39 lines 5-8, AB 67 line 12.

[50]  AB 68 lines 24-45.

[51]  AB 68 line 47.

[52]  AB 69 line 25.

[53]  AB 85 line 45 to AB 86 line 7.

[54]  AB 72.

[55]  AB 73 line 32.

[56]  AB 78 line 18.

[57]  AB 76 lines 31-37.

[58]  AB 76 lines 39-47.

[59]  AB 86 line 23.

[60]  AB 86 line 26.

[61]  AB 82.

[62]  AB 83 line 7.

[63]  AB 84 line 9.

[64]  AB 94 lines 8-26.

[65]  AB 95 line 3.

[66]  AB 95 line 34.

[67]  AB 97.

[68]  AB 98.

[69]  AB 99 line 40.

[70]  AB 100.

[71]  AB 158.

[72]  Exhibit 7.

[73]  AB 126 lines 20-32.

[74]  AB 132.

[75]  AB 132.

[76]  AB 133.

[77]  AB 135 line 35.

[78]  AB 136.

[79]  AB 144-145.

[80]  AB 147.

[81]  AB 148 line 11.

[82]  AB 148 lines 23-29.

[83]  AB 149 lines 5-8.

[84]  AB 172.

[85]  AB 173.

[86]  AB 175.

[87]  AB 177.

[88]  AB 178.

[89]  AB 181.

[90]  A bleeding spot in the white of the left eye.

[91]  AB 156.

[92]  AB 337-338.

[93]  AB 162.

[94]  AB 728-729, 755, 758-761, 778-779.

[95]  AB 774.

[96]  AB 782.

[97]  AB 751.

[98]  He later changed that to eight or nine: AB 808.

[99]  AB 766 line 37.

[100]  AB 781 line 43.

[101]  AB 789-791.

[102]  AB 796-798.

[103]  AB 801 line 56 to AB 802 line 8.

[104]  AB 805 lines 15-24.

[105]  AB 768 line 19.

[106]  AB 768 lines 35-52.

[107]  AB 807 lines 14-54; AB 815 lines 9-18.

[108]  AB 808 line 21.

[109]  AB 761, 809.

[110]  AB 809.

[111]  AB 810 lines 12-38.

[112]  AB 813 line 3.

[113]  AB 814 line 4.

[114]  AB 816-817.

[115]  AB 819 lines 5-27.

[116]  AB 822 line 18, AB 823 lines 21, 55.

[117]  AB 823 line 10.

[118]  AB 824 line 5.

[119]  AB 830 line 38.

[120]  AB 326.

[121]  Though he immediately qualified it, the jury may have taken the view that was because he realised the potential gravity of what he had said.

[122]  See the evidence of Ms Stowe at AB 156 line 19.  Though she accepted in cross-examination that he said “punched” or “hit him”, the jury may have considered the latter response as not inconsistent with “king hit”.

[123]  The former said to Mr Dale and the latter to Mr Dulieu.

[124]  The appellant said “let’s roll them”.

[125]  AB 809 line 14.

[126]  AB 94.

[127]  AB 133 line 16.

[128]  AB 142 line 43 and following.

[129]  AB 326 line 40.

[130]  AB 327 line 4.

[131]  (2016) 256 CLR 482 at 490 [14], per Kiefel, Bell and Keane JJ; internal citations omitted.

[132] Zaburoni at [15].

[133] Zaburoni at [47], [49], [63] and [72].

[134] Zaburoni at [44], [63] and [72].

[135] R v Baden-Clay (2016) 258 CLR 308 at [65]-[66].

[136] M v The Queen (1994) 181 CLR 487 at 494-495, R v Baden-Clay (2016) 258 CLR 308 at [65]-[66].

[137] Zaburoni v The Queen (2016) 256 CLR 482 at 490-491 [17].

[138] Charlie v The Queen (1999) 199 CLR 387 at 411 [76] per Callinan J (with whom Gleeson CJ and McHugh J agreed).

[139] Boughey v The Queen (1986) 161 CLR 10; R v Crossman [2011] 2 Qd R 435.

[140]  (2011) 42 WAR 91.

[141]  (2011) 42 WAR 91 at 96-97 [25].

[142]  (1999) 199 CLR 387 at 410-412, especially at [76].

[143] Knight v The Queen (1992) 175 CLR 495.

[144] Plomp v The Queen (1963) 110 CLR 234.

[145]  (2016) 258 CLR 308 at 324 [47], quoting Peacock v The Queen (1911) 13 CLR 619 at 661 and citing Barca v The Queen (1975) 133 CLR 82.

[146]  (2016) 258 CLR 308 at 326 [55].

[147] Nudd v The Queen (2006) 80 ALJR 614; 162 A Crim R 301 at [7], [15].

Close

Editorial Notes

  • Published Case Name:

    R v Livingstone

  • Shortened Case Name:

    R v Livingstone

  • MNC:

    [2018] QCA 3

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Mullins J

  • Date:

    06 Feb 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment SC26/17 (No Citation) 28 Apr 2017 Date of Conviction (Henry J).
Appeal Determined (QCA) [2018] QCA 3 06 Feb 2018 Appeal against conviction dismissed: Morrison JA and Mullins J (McMurdo JA dissenting).

Appeal Status

{solid} Appeal Determined (QCA)