R v Gathercole[2016] QCA 336

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant, Paul Gathercole, was charged with murdering Robbie Joseph Charles on 1 February 2014.  At his first trial in August 2015, the jury were unable to reach a verdict.  At the commencement of his second trial on 7 March 2016, in the presence of the jury panel, he pleaded not guilty to murder but guilty to manslaughter.  The prosecution did not accept his guilty plea in satisfaction of the indictment.  The only issue at trial was whether the appellant intended to kill or do grievous bodily harm to the deceased at the time of the killing.  After a five day trial, he was convicted of murder.  He has appealed against his conviction on two grounds.  The first is that the verdict is unreasonable and unsupported by the evidence.  The second is that the prosecutor’s final address to the jury included inappropriate remarks which may have improperly influenced the jury so as to cause a miscarriage of justice.  I would allow the appeal on the second ground.
2. A consideration of the first ground requires this Court to review the whole of the relevant evidence at trial, and determine whether it was open to the jury to be satisfied beyond reasonable doubt of his guilt.^[1]

The relevant evidence at trial

3. It was uncontentious that the appellant and the deceased were good friends.  The deceased and his dog had lived in the appellant’s one bedroom unit for about a year prior to the killing.  On 1 February 2014, the appellant killed the deceased by stabbing him in the abdomen with a large kitchen knife.^[2]  There was no evidence of any prior hostility between them.
4. Ms Vanessa Heath, the deceased’s girlfriend for the past four years, gave evidence that she stayed over at the unit two or three nights a week.  She and the deceased slept on a mattress to the right-hand side of the coffee table in front of the couch.^[3]  On 1 February 2014, she and the deceased went to the Nobby’s Beach Surf Club for about an hour.  She drank two full strength schooners of beer whilst the deceased drank three.  They walked to Magic Mountain for their local darts club’s annual party, which the appellant also attended.  As the drinks were included, all three had more to drink than usual.  She had about 10 alcoholic drinks, maybe more.  She drank beer, then wine and later changed to something else, perhaps beer again.^[4]  The deceased was drinking beer and rum.  He had cut the palm of his left hand earlier and it was wrapped in a makeshift bandage.  After the party, she and the deceased returned to the surf club.  She could not remember much apart from arguing with the deceased on the surf club’s courtesy bus which dropped them at the appellant’s nearby unit.  She was unsure if she got off the bus before it reached the unit.^[5]
5. Her next recollection was waking up on the couch in the unit.  The appellant was standing in front of the coffee table, about two and a half metres from her, with a bloody knife.  She sensed he was in shock.  He said he had done something really wrong.  She ran outside and saw the deceased lying on the ground with his intestines protruding from his body.  She took off her shirt, used it to stop the blood flow, and yelled out for someone to call an ambulance.  She and a neighbour attempted CPR until the ambulance or the police arrived and took over.  The appellant was standing beside the deceased saying, “Oh, I’m sorry.  I’m sorry.”^[6]
6. She was shown photographs, taken on the night of the killing, of the appellant’s lounge room.  She identified items which were out of place: an oscillating fan; a knife and knife sharpener which were usually kept in the kitchen; and a cupboard door, usually propped against but not attached to the TV unit.  A dumbbell photographed on the kitchen floor was also out of place.^[7]
7. In cross-examination, she agreed to the following.  She told the police the appellant said: “Vanessa, help me...help me because I’ve done something really bad”.  When she asked him what he had done, he responded, “I didn’t mean to.”^[8]  The appellant and the deceased were very good friends.^[9]  Sometimes after binge drinking, the appellant had no memory of what happened the previous night.^[10]
8. She described the deceased’s dog as very loyal to him.  She, the appellant and the deceased were the only ones who could “do anything with the dog” because it took a long time to trust people.  The appellant was also very attached to it.  There was no history of jealousy between the appellant and the deceased over the dog.  She had never seen the deceased kick the dog.^[11]
9. Mr Kevin Byrnes, a security officer at the surf club, gave evidence that the appellant had clearly been drinking alcohol on the evening of 1 February but it was hard to judge his level of intoxication.^[12]  He told police that at the end of the evening the appellant seemed emotional and upset.  He walked in as a happy, smiling, vibrant person but later he looked like something was wrong.^[13]
10. Ms Emily Strotten, duty manager at the surf club on 1 February, saw the appellant, the deceased and Ms Heath arrive at about 9.00 pm.  The appellant did not seem intoxicated although he was sunburnt and red.  She described him as “pretty much alright.”^[14]  He had no difficulty walking or with his speech.  They stayed for an hour or so and had only one heavy beer each.  The appellant brought some glasses back to the bar as a courteous gesture.  He had five or six stacked up his right arm and two more in his left hand, performing this manoeuvre without difficulty.  He was also playing Keno without difficulty.^[15]
11. Mr Bradley Stewart, the driver of the surf club courtesy bus, gave evidence that he drove the deceased and Ms Heath to the appellant’s unit.  They argued the entire trip.  The deceased opened the door while the bus was moving and told Ms Heath to get out.  Mr Stewart had to stop the vehicle and tell them both “to basically pull their heads in.”  When he dropped them home, he saw the appellant taking the deceased’s dog for a walk.^[16]
12. Ms Amanda Felmingham, the appellant’s neighbour, gave evidence that, at about 10.30 pm, she heard the appellant say, “Don’t kick the dog in the head.  You’re a fucking dog.  You’re a fucking dog.”  She heard sounds of a scuffle, two people fighting and Ms Heath yelling, “Oh, my God, what have you done?”  These events occurred over a few seconds.  The appellant’s voice sounded upset and angry.^[17]
13. Mr Liam Wright, her partner, heard the appellant at about 10.30 pm say, “You kicked him in the head, you mongrel dog,” then a female voice screaming, “What have you done?”, followed by a male voice (the appellant he assumed) yelling, “Fuck.”  He, too, thought these events happened fairly instantly.^[18]
14. When police first arrived at the scene the appellant admitted he had stabbed the deceased.^[19]  Police officer Shane Pokais did not think the appellant appeared to be grossly intoxicated.  His speech was not slurred; he did not smell of alcohol; he was able to converse and stand.^[20]  Scenes of Crime Officer, Scott Ewington, noticed that most of the blood was pooled on the mattress in the lounge room.  He also saw droplets of blood down the path between the door and the grass patch where the deceased was located.^[21]
15. Police recorded their conversation with the distraught appellant.^[22]  He said he was so scared; he did not mean to do it.  When police asked what he was scared about, he said, “I know I stabbed him.”^[23]  He said he was scared that he had really hurt his friend.  The conversation included the following:

“And just had an argument and I just skitzed off.  I just skitzed.  I just lost my temper.  I grabbed the knife and I went bang.  Officer, I, I didn’t even know why, why I did…I’m gonna commit suicide for what I’ve done to my best friend… I’ll never drink alcohol again...he’s my best fucking friend...my best mate...come on, Robbie...come on, Robbie.  I’m sorry...come on, Robbie.  I didn’t mean it...come on, Robbie.  You will live, Robbie.  I didn’t mean it...I was fucking drunk.  Please, Robbie...come on, Robbie.  You will live.  You will live, Robbie.  Please...I didn’t mean it...Oh please, Rob...please Rob, survive.  Please save him.  Do anything, I didn’t mean...He’s my best friend...I’m fucking drunk.  Like, I don’t wanna hurt anyone...I don’t wanna hurt myself.  I’ve tried [INDISTINCT] myself a few times...But I’ve never hurt anyone else.  Please, please, is he alright?...Please?  I’m so scared...He’s my friend...I’ve accidentally killed my friend...Killed my best friend ever...have I accidentally killed...my best friend?...what have I done?  What have I done?  Is he alright, sir?...He’s my best mate...I fucking hope he’s all right [INDISTINCT].  I didn’t want hurt the person [INDISTINCT], or anyone.  I’m not a fucking, I’m not a bad [INDISTINCT] I’ve never anyone.  Alcohol.  [INDISTINCT].  So sir, is he alright?...Please [INDISTINCT] save him.  Please let him be all right.  Please.  I didn’t mean to do anything.  I, I was drunk.  Please.  Come on, Robbie.  Live.  You’ll live.  Come on, Robbie.  I’m so sorry.  I was drunk.  I’m a stupid idiot...Please.  I’m so drunk I don’t even know what I did...if I had my time again, I’d never even be in the kitchen...so I hope he lives with every [INDISTINCT] in my body that he lives, ‘cause I’m not [INDISTINCT].  I can’t deal with this.  He’s my best friend.  I’m not, well, he was.  What have I done?  I’ll shoot myself.  I can’t handle it.  How the fuck do you stab your best mate?  How the fuck did I stab my best mate?  Why?  How? ...I’m drunk.  I live with H-I-V…I just skitzed.  I s-, I snapped.  I’m so scared, sir.  I don’t wanna, I don’t wanna hurt anyone, especially my best mate…I’d give my life for anyone at all.  Please, come on, Robbie.  Come on, Robbie.  You’re gonna make it.  I’m so sorry, Robbie.  Please.  Please, Robbie.  I’m so sorry.  I’m so sorry.  Please...Come on, Robbie.  Holden’s waiting for you.  Come on, Robbie...I’m really scared, sir...I hurt my friend.  Drunk.  Is he all right?...I’m so scared.  I didn’t wanna hurt anyone, ever.  I think I freaked out.  Please.  Please, Robbie.  You’re my best mate.  Please be all right.  I’m so sorry.  [INDISTINCT].  Please.  Please. [INDISTINCT]...I’m so scared though.  A drunken rage.  I skitzed out.  I, I’ve been H-I-V for, since July ‘99 and I just snapped.  I don’t know, I don’t wanna hurt anyway, especially my best friend.  I’m so scared...I wanna commit suicide now.”

16. After police told him the deceased had died, he said:

“What’d I do?  He’s my best mate...What have I done?...I saw my best mate get murdered when I was sixteen, and now, through alcohol, I’ve murdered my best mate.  How’s that work out?...Best fucking friend.”^[24]

17. Police also recorded their conversation with the appellant whilst they took him to the watchhouse.^[25]  The appellant asked how he could commit suicide in jail because he had never wanted to hurt anyone and now he had taken his “best mate’s innocent life...in a fuckin’ rage of fuckin’ alcohol...I’ll do anything possible, anything possible to commit suicide for what I have done by mistake.”^[26]  He added:

“...I’ve had about, about a hundred drinks today, mate.  I’m, I am drunk.  But I am, well now I’m nearly sober [INDISTINCT] the shock.  I’ve never been so shocked and so numb in my life.  For what I done in a fit of rage [INDISTINCT] best friend.  I died twice in my life.  And I’m goin’ to commit suicide in the last time.  Can’t handle [INDISTINCT].  I accidentally killed my best friend, mate.  What can I do?... You know, he’s helped me out so much, through thick and thin, bein’ HIV.”^[27]

18. Police said they would leave him in a cell for a while and chat later.  He responded, “I’ll smash me head on the concrete till I’m dead.  I took [INDISTINCT] my best mate’s life...’Cause I’m drunk.”^[28]
19. He was anxious about who would care for the deceased’s dog.  The police told him the dog squad had the dog and the Council would look after it.  He responded, “the Council don’t look after jack shit.”^[29]
20. Police asked if he had ever attempted suicide or self-harm.  He responded affirmatively and said about two months ago he attempted suicide “down the beach at night.”^[30]
21. He was next interviewed by police at 7.44 am on 2 February 2014.^[31]  He said that he commenced drinking beer at 11.00 am the previous day and drank about 20 beers between then and 10.00 pm.  He also smoked a joint of marijuana at about 2.00 pm or 3.00 pm.^[32]  He described himself as “not blatantly drunk, just happy.”  The deceased and Ms Heath were probably as intoxicated as he was, with a good level of control over themselves.^[33]
22. He told police he remembered sitting on the surf club’s smoking balcony with the deceased and Ms Heath.  He played Keno and probably drank two Toohey’s New schooners.  He thought the deceased was drinking Carlton Draft schooners.^[34]  He left the surf club at about 10.00 pm on the courtesy bus with the deceased and Ms Heath.^[35]
23. When he returned to the unit, he thought he and the deceased had “a little bit of an argument” but he was not sure.  He remembered holding the deceased’s stomach with a tea towel.  He believed he stabbed him out of rage.  The appellant screamed for help, for the ambulance.  The police and ambulance came and that was all he could remember.^[36]  He described the deceased as a “top bloke...muscley...a worker and very generous person...a good guy.”^[37]  They had been mates for many, many years.  The deceased had trouble finding a place to live because he had a dog and he stayed on the appellant’s couch.  Their relationship was very good, as was his relationship with Ms Heath.^[38]
24. When questioned further he said that when he got home he thought he turned on the TV and that the three of them talked about the day.  He thought he took the dog, Holden, an American Blue-Blood Staffordshire Terrier, for a walk around the block; that was what he normally did if the dog had been inside all day.  He did not consume any more alcohol or drugs.  He had trouble with short term memory.^[39]  He claimed that he:

“woulda had to be standing in the kitchen.  ‘Cause when I believe I snapped and stabbed him, I [INDISTINCT], I grabbed a kitchen knife.  ...’Cause I’ve a, a glimpse of meself grabbin’ a knife s-, really angry, just schized out.  And then I remember holding Rob’s stomach as he passed, passed out.  ...I just remember a, a, a rage in my body.  And I just, just grabbed a knife.  And that’s all.  I don’t remember anything else, why, what I did.  I don’t remember if I chased him.  I don’t know, ah I don’t know.  All I remember is, then I remember calling for help...”.^[40]

25. He did not know why he was in a rage.  He had a short temper triggered by alcohol, since he suffered injuries when he was young.^[41]  He stated: “Oh I just got this glimpse.  I’ve opened up the top drawer, and that’s, next thing I know, I’m holding Rob’s, putting pressure on the, on his stomach.”  He described himself as “pretty happy” when he arrived home.  He did not remember what the argument was about but there would have had to have been an argument or he would not have snapped and he would not be here.^[42]  He explained:

“Just had a, just [INDISTINCT] feeling and a glimpse and I snapped and I just turned around, grabbed, grabbed the knife out of the drawer.  That’s all I remember. ...I’ve got very short temper, been very short ah memory.  I just, I don’t know, it’s very hard to explain, you know.  Sometimes you say things that you don’t mean, you know, just, [INDISTINCT] rage.  It just builds up and just, I don’t know, just all the anger comes out at once. ...probably it doesn’t take much when I’m, you know, intoxicated.  Just, I don’t know, I just snapped.”^[43]

26. He explained that the drawer which contained knives, forks and cooking equipment was on the right hand side of the kitchen sink.  He did not remember the knife but he thought it was big because the deceased did a lot of cooking and liked his “chef knives and stuff like that.”^[44]
27. He said that “this” had happened after too many drinks.  He had not sought help for “it” for some years.  He was suicidal when first diagnosed as HIV positive but had not been suicidal for a long time.^[45]  He and the deceased had no history of violence.  They had argued a few times over minor matters, “very short and sweet.”  He was not really scared of the deceased even though he was “a big boy”; he would not have attacked the appellant for fear of blood contamination from HIV.^[46]  The appellant said he had been diagnosed and treated for depression but had not taken medication for about eight years.^[47]
28. An analyst’s certificate recorded the appellant’s blood alcohol content at 0.092g per 100ml at 4.45 am on 2 February 2014.^[48]  Dr Catherine Lincoln, a forensic medical officer, gave evidence that, at the time of the stabbing, it would have been between 0.15g per 100ml and 0.28g per 100ml.^[49]  Alcohol is a depressant of the central nervous system, a sedative affecting cognitive functions like intellectual performance and decision making.  It can lead to making decisions in a more disinhibited or reckless way.  It effects people’s ability to control themselves, their potential for anger, and their ability to concentrate.  Someone who drinks alcohol regularly will develop a tolerance so that the same level of alcohol will have less of an affect than on someone who is unused to alcohol.^[50]
29. Dr Dianne Little, forensic pathologist, gave evidence that the deceased was a 170 cm tall, previously healthy male weighing 90.8 kilograms.^[51]  The fatal wound was 80 millimetres long and 20 centimetres deep, forming a roughly elongated triangular shape pointing downward.  It passed through muscle into the abdominal cavity, through the duodenum, damaging the mesentery, and continued backwards through the aorta (the main artery), two centimetres from where it branches to each leg.  It also cut through about two thirds of the circumference of the inferior vena cava (the main vein), stopping in front of lumber vertebra number three.  The overall direction of the wound was backwards, slightly upwards, and towards the right.^[52]  The cause of death was the stab wound to the abdomen and the resulting haemorrhage from the aorta and the inferior vena cava.^[53]  The blade of the knife used was 42 millimetres.^[54]  Its sharpened end entered the wound with moderate force.^[55]  The deceased’s blood alcohol content was 0.298g per 100ml.^[56]
30. Dr Little also noted some minor injuries to the deceased.  These included: an abrasion to the right eyebrow; three abrasions to the right upper cheek; an abrasion to the mid-right cheek; an abrasion to the left upper chest; a cutting type wound to the palm of the left hand; another cutting type wound to the back of the left hand between the thumb and index finger; an abrasion to the back of the left hand; a cut on the back of the fourth finger of the left hand; an abrasion over the back of the right elbow; a cut on the fifth knuckle of the right hand; a cut on the tip of the third finger; an abrasion on the inner side of the left knee; bruising and an abrasion on the upper outer part of the left knee; an abrasion on the lower part of the left knee; a large number of pinpoint abrasions and bruises over the front of the left shin; an abrasion on the upper inner part of the right knee; an abrasion on the front of the right knee; an abrasion just below the right knee; multiple pinpoint abrasions to the right shin; and an abrasion on the lower right knee.^[57]  The superficial injuries to the right hand could be defensive injuries.^[58]  The injuries to the left hand, however, were apparently incurred earlier at Magic Mountain.^[59]
31. The appellant made formal admissions which included the following.^[60]  He made a 000 call to the Queensland Ambulance Service at 10.23 pm on 1 February 2014.^[61]  The deceased was pronounced dead at the scene by ambulance officers at 10.55 pm.  His blood was located on the knife and mattress.^[62]  No DNA or fingerprints were found on the knife sharpener or the dumbbell.^[63]  The analyst’s certificate relating to the appellant’s blood sample taken at 4.45 am on 2 February 2014 was accurate.  Ms Heath was medically examined on 2 February 2014 and there was no evidence of any injury.  The dog was examined on 3 February 2014 and was uninjured, although it had conjunctivitis and some scarring to its head, probably caused from chronic skin issues common to the Staffordshire Bull Terrier breed.
32. The appellant did not give evidence at trial.  His counsel submitted that the evidence led in the prosecution case raised the reasonable possibility that he was so intoxicated he acted without purpose in a drunken blind rage and did not form any murderous intent in respect of his best mate; he should be found not guilty of murder and guilty only of manslaughter.

Unreasonable Verdict

33. A properly instructed jury could have accepted the defence submission that the prosecution had not established beyond reasonable doubt that the appellant intended to kill or do grievous bodily harm to the deceased.  He was his best mate to whom he had never before shown any hostility.  A jury could have considered it was a reasonable possibility that the appellant stabbed the deceased, without purpose or intention, in the heat of an irrational drunken rage.  His immediate post-offence conduct and his statements to police were capable of at least raising a doubt as to whether he had a murderous intent.
34. But it was also open for the jury to conclude on the evidence that the appellant, although heavily intoxicated, was a seasoned drinker who was still functioning reasonably, especially given the evidence of the surf club duty manager, Ms Strotten.  The evidence supported a finding that the appellant fought with the deceased over what the appellant perceived to be the deceased’s maltreatment of the dog; that he opened the kitchen drawer, removed a large and obviously dangerous knife, and in the heat of an argument over the dog stabbed the deceased with moderate force to the abdomen; that the deceased unsuccessfully tried to fend off the attack; and that, at that time, the appellant intended to do the deceased at least serious harm.  The jury could have construed the appellant’s post-offence conduct as deep and genuine remorse for the killing and concern for the gravity of his own position, after realising the enormity and finality of his actions in killing his best mate.
35. After reviewing the whole of the evidence, I am persuaded it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of murder.  This ground of appeal is not made out.

Statements of the prosecutor

The impugned submissions

36. The appellant contends that the following statements by the prosecutor during his closing address to the jury caused a miscarriage of justice requiring the allowing of the appeal and a retrial.
37. The prosecutor submitted that the appellant knew that binge drinking sent him into rages but he had not sought treatment for a long time, adding:

“He claimed in that police interview the reason for that that he hadn’t been suicidal for a long time.  But we know that’s not true.  He’d attempted suicide down at the beach two months before.  Two months before the day of the stabbing he was seeking to end his own life.  That’s how much he thought of human life.

He’d also given up the Zoloft, the antidepressant, eight years ago it might be [INDISTINCT].  He knew he was vulnerable, all these issues ticking away, having witnessed the murder of his own friend years ago.  He kept bringing that up after the event.  The depression, the anger – all there when he drank – a rage just under the surface, ticking away like a time bomb.  He knew what binge drinking could make him do, yet he drank big, he lost his temper, he fell into a murderous rage and he killed his best friend.  That makes him guilty of the offence of murder, ladies and gentlemen.”^[64]

38. Much later in the address, the prosecutor, quoting from the appellant’s statement to police about the effect of alcohol on his mental state, said:

“And the police officer then says:

And so when did you last seek help in relation to it?

Answer:

Years ago.

Question:

Yeah, because I haven’t been suicidal for a long time.  So ---

Police – there’s indistinct.  And he said:

Being suicidal for being HIV.

So he explains he’s got these rages.  And he hasn’t done anything about them because he’s not suicidal, and yet we note from that conversation that he has with the police officer – the female police officer at the watch house that he was asked have you ever attempted suicide or self-harm, and the [appellant] replied yes.  And when she asked when was the last time [he] replied about two months ago down at the beach.  So at a time [indistinct] recently he was in a state of mind where he wasn’t placing value on human life.  Quite inconsistent with what he said as his reason for not seeking help in the interview.”^[65]

39. The prosecutor then suggested that the appellant had “a distorted obsession”^[66] with the deceased’s dog and that alcohol had blown this out of proportion.  He invited the jury to listen to the video recording of the appellant’s interview with police in the context of having just knifed his friend, adding:

“Seeing the damage he has caused to [the deceased’s] stomach, being arrested by the police, then you have this big hoo-ha, initially, about how he wants to assist getting the dog under control, or getting Vanessa Heath to do it, and you hear him shouting out, ‘Vanessa, help the dog.  Help the dog.”  This is when his friend is being worked on.  He’s seen the damage.  His friend’s being worked on.  Vanessa Heath’s obviously going to be extremely occupied, in the circumstances, and he’s looking [indistinct] Vanessa to get the dog – make sure the dog’s under control.  [The deceased] obviously takes second place for a while, doesn’t he?”^[67]

40. The prosecutor then quoted from the appellant’s statements to police in which he expressed his concern for the dog and the police reassured him that the dog squad and the Council were involved, adding:

“…and then do you recall him absolutely firing up at that particular stage?  His friend’s dead, but concerned about the dog and he’s up the council.”^[68]

41. Later, after discussing the evidence of the neighbours as to what they heard take place between the appellant and the deceased immediately before the stabbing, the prosecutor added:

“He can’t recall but it all seems to happen fairly fast, fairly instantly, and neither of them recall hearing any barking or yelping from the dog, and you’ve heard, ladies and gentleman, how the dog has been examined by a vet.  It’s a robust type of breed, you might think.  The – a vet has examined it and there is no injury at all on the dog, but there’s also no doubt, you might think, that the [appellant] has formed the impression that [the deceased] had kicked the dog in the head, and in that moment of temper, that rage, the trigger had been pushed, hadn’t it?  He thought [the deceased] was a mongrel dog.  That was his view over him.  At that moment, the dog meant more to him than [the deceased] and [the deceased] was going to pay for what he’d done to the dog.  Primal, illogical, but factual.”^[69]

The appellant’s contentions

42. The appellant emphasises that prosecutors must conduct themselves with restraint and with due regard to an accused person’s rights and dignity.^[70]  This obligation extends to a prosecutor’s address.^[71]  Suggesting that his previous attempts at suicide demonstrated he placed little or no value on human life, the appellant submits, implied that he would have thought nothing of taking the deceased’s life.  This, the appellant contends, breached the obligation of restraint, showed a disregard for the appellant’s dignity and was unfair and illogical.  The evidence at trial did not focus on the appellant’s previous suicide attempts as they were not relevant to the sole issue: whether the appellant acted with a murderous intent.  There was no logical connection between the despair and depression which may have driven the appellant to attempt suicide in the past and his state of mind when he killed the deceased.  It was not evidence relevant to his intention to kill or do grievous bodily harm to the deceased.  The prosecutor took unfair advantage of the evidence of the appellant’s vulnerable mental condition to make illegitimate and prejudicial submissions to the jury.  There was a risk that the jury may have been wrongly persuaded by them.
43. When those submissions were combined with the prosecutor’s improper submissions that the appellant had more concern for the dog than for the deceased, the appellant contends there was compounded unfairness.  The evidence established that, immediately after the event, the appellant’s thoughts were with his fatally injured best friend, willing him to live.  The appellant’s attempts to ensure the police were not at risk from the dog, and his concern that the dog would be properly looked after, he submits, could not fairly support a contention that he preferred the dog to the deceased and therefore acted with a murderous intent.  The comments were apt to distract the jury from a rational consideration of the single real issue; were not made in response to the defence case; went beyond the “flamboyant and unfortunate”;^[72] drew conclusions that were not available on the evidence; and were not ameliorated in the judge’s final directions to the jury.  In a finely balanced case such as this, the appellant submits there was a serious possibility that the prosecutor’s impugned comments may have influenced the jury to return a verdict of guilty, thereby causing a miscarriage of justice.^[73]

The respondent’s contentions

44. The respondent concedes that the comments in the impugned passages at [37] and [38] of these reasons, although not made with bad intentions, should not have been made.  But, even if understood in the way contended for by the appellant, the respondent contends there has been no resulting miscarriage of justice.
45. The respondent further contends that the remaining impugned passages set out at [39], [40] and [41] of these reasons, were, in the context of this trial, valid prosecutorial submissions.
46. Whilst the prosecutor’s submissions as to the relevance of an earlier attempted suicide were “clearly and grossly illogical”,^[74] the respondent submits that they were so illogical the jury would have understood them for what they were and not been influenced by them.  There was, the respondent contends, no real risk that these comments wrongly influenced the verdict, resulting in an unfair trial.
47. The respondent emphasises that the prosecutor’s address was followed by both the longer defence address and the judge’s final directions to the jury.  The judge told the jury that their verdict must be based only on the evidence; counsel’s addresses were not evidence; and emotion was to play no part in their deliberations.  The jury can be taken to have faithfully followed those directions.  The verdict, the respondent points out, was not delivered until the day after the prosecutor’s address.
48. The respondent also notes that experienced defence counsel did not seek any judicial correction of the impugned passages and nor did the experienced trial judge consider it necessary to directly address them.  This, the respondent contends, suggests that there were no issues requiring correction.  The prosecution case was sufficiently strong to allow this Court to conclude that there was no real risk of the impugned prosecutorial comments tipping the scales and resulting in a conviction that would not have otherwise occurred.

Conclusion on this ground of appeal

49. It is well established that in conducting an Australian criminal trial, which is both accusatorial and adversarial, the prosecutor has a duty not to obtain a conviction at any cost but to act as a minister of justice.^[75]  The prosecutor’s role is to place before the jury the evidence the prosecution considers credible and to make firm and fair submissions consistent with that evidence but without any consideration for winning or losing.  The central principle is that the prosecution case must be presented with fairness to the accused.  Unfairness may arise from the manner in which the prosecutor addresses the jury.^[76]  The fact that, as here, no objection was taken at trial to what is alleged on appeal to be unfair requires the appellate court to carefully examine what happened at trial to determine whether there has been unfairness.^[77]  If so, the appellate court must determine whether, as a result of the unfairness, the appellant may have lost a chance which was fairly open of being acquitted.  If so, there has been a miscarriage of justice.^[78]
50. I agree with the respondent’s submission that the impugned passages in the prosecutor’s address set out in [39], [40] and [41] of these reasons were not unfair.  He was entitled on the evidence, especially that of the neighbours’, to suggest to the jury that the appellant killed the deceased with a murderous intent in the heat of an alcohol-fuelled rage, resulting from what he believed was the deceased’s maltreatment of the dog.  It was solely a matter for the jury whether they accepted those submissions or the contrary submissions of defence counsel.
51. But, as the respondent rightly concedes, the prosecutor’s statements to the jury set out in [37] and [38] of these reasons are in a different category.  Evidence of an accused person’s attempted suicide may be relevant to the accused’s intent where the accused has made the suicide attempt in circumstances closely related and interconnected with the charged offence.  An obvious example is where an accused has killed or attempted to kill one or more people immediately before or in the course of a failed suicide attempt.^[79]  But the fact that this appellant may have attempted suicide two months earlier in an incident completely unrelated to the present charge, and the fact that he initially told the police he had not attempted suicide for a long time but then said he had made an attempt two months earlier, was irrelevant to the issue of whether, at the time he stabbed the deceased, he did so with a murderous intent.  This evidence was not only irrelevant; it was potentially highly prejudicial.  It is not so long since suicide and attempted suicide were criminal offences and those who died from suicide could not be buried in a Christian cemetery.  Some jurors may still regard suicide or attempted suicide as sinful or morally culpable.
52. The prosecutor wrongly urged the jury to reason that, because the appellant had attempted suicide in the past, in circumstances completely removed from the charged killing, he had no respect for human life and formed a murderous intent when he killed the deceased.  Nor was the fact that at the time of the killing he had not sought help for his rages triggered by binge drinking, or the fact that that he was not taking medication for the depression which developed when he was diagnosed as HIV positive, relevant to whether he had a murderous intent when he killed the deceased.  These aspects of the prosecutor’s submissions were illogical, unfair and concerning as they encouraged the jury to follow an impermissible path of reasoning.^[80]  They were also prone to appeal to the possible prejudices of jurors towards those suffering from mental illness.
53. It is next necessary to determine whether this prosecutorial error has resulted in a miscarriage of justice by depriving the appellant of the chance of an acquittal fairly open on the evidence.
54. It is true, as the respondent submits, that the experienced counsel for the appellant did not object to this aspect of the prosecutor’s address and that he then addressed the jury at some length without reference to those submissions.  The judge followed with her final directions to the jury.  It is also true that the judge gave the jury the standard directions to dismiss all feelings of sympathy or prejudice, whether for or against the appellant or anyone else; that emotion must not play any part in their decision; and that they must approach their duty dispassionately, deciding the facts upon the whole of the evidence.^[81]  And fortunately, her Honour did not repeat the improper prosecutorial submissions in summarising for the jury the competing contentions of counsel.
55. But those matters are far from fatal to the appellant’s contentions.^[82]  Unfortunately the judge did not correct the prosecutor’s wrong submissions, no doubt because her Honour was not asked for such a correction.  The case against the appellant was by no means overwhelming.  It was one on which different juries could reasonably have reached different conclusions, either convicting him of murder or acquitting him of murder but convicting him of manslaughter.  It was unsurprising that the jury in his first trial were unable to reach a verdict after deliberating for almost two days.
56. After careful consideration, I am finally persuaded that, in the absence of firm directions from the trial judge to disregard the prosecutor’s submissions that the appellant had formed a murderous intent because he had not obtained treatment for his mental health issues; had stopped his medication; and had previously attempted suicide, the jury may have convicted him of murder by following this impermissible and illogical path of reasoning.  It follows that the appellant may have been deprived of a chance of acquittal on the charge of murder fairly open on the evidence.  As the appellant has succeeded on this ground of appeal, the appeal must be allowed and a retrial ordered.

Orders

1. The appeal is allowed.

2. The verdict of guilty of murder is set aside.

3. A retrial is ordered.

57. MORRISON JA:  I have read the reasons of President McMurdo and agree with those reasons and the orders her Honour proposes.
58. ATKINSON J:  I have had the advantage of reading the reasons for judgment of McMurdo P.  I agree with those reasons and with the orders her Honour proposes.