R v Nott[2020] QCA 207

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On Boxing Day 2015 the appellant had been drinking with a number of friends and acquaintances at a park on the Noosa River.  Throughout the course of that day he consumed a significant quantity of cask wine.  Late in the afternoon Nathan Wiseman joined them.  Mr Wiseman was unknown to the group, but became part of the drinking party.
2. [2]
   Mr Wiseman talked mainly with the appellant and the appellant’s then partner, Ms Berghofer.  Eventually, a number of people in the group left, leaving the appellant, Mr Wiseman and Ms Berghofer.  They then walked in the direction of the Noosa Marina.  They went across the Memorial Avenue Bridge, heading in the direction of Noosaville.
3. [3]
   Mr Wiseman’s mother (Ms Thorn) was in her car looking for Mr Wiseman.  She pulled up next to the three of them at about 11.30 pm.  She told them that she was checking on her son and the appellant responded, “He’s alright with us, love”.  At that time Mr Wiseman was noticeably drunk.
4. [4]
   The three continued on their way, eventually sitting down on the bank of the Noosa River.  Mr Wiseman’s mother came back and spoke to them again, trying to persuade her son to go home with her.  He refused.  Ms Thorn was again reassured by the appellant that “He’s alright with us, love”.
5. [5]
   Ms Thorn returned home.  Shortly after that there was an argument between the appellant and Ms Berghofer.  According to the appellant, he threw Ms Berghofer’s cask of wine into the river, which upset her.  He said he then was king-hit by Mr Wiseman.  At that point Ms Berghofer ran away, back across the bridge.
6. [6]
   Mr Wiseman walked or ran down to Hilton Esplanade, and the appellant followed him.  There was an exchange between them, which developed into a physical struggle.  The appellant produced a knife from his pocket and stabbed Mr Wiseman twice in the chest and once in the neck.  The injuries killed Mr Wiseman, who remained lying on the roadway.  The appellant went back across the bridge to find Ms Berghofer, throwing his knife and his bloodstained shirt into the river.
7. [7]
   An autopsy revealed the fatal wounds to Mr Wiseman.  They commenced with a single entry wound to the chest, 35 millimetres long, six millimetres wide and 12 centimetres deep.  Within the one wound there were two separate incisions.  One incision went through the chest wall between the third and fourth ribs and into the heart.  The second incision went into the heart and lung.  There was also a stab wound to the neck, 15 millimetres long, three millimetres wide and two centimetres deep.  That caused a seven millimetre incision to the jugular vein.  In addition, there was a cut to the back of the neck, 110 millimetres long, but with three breaks in it.
8. [8]
   The cause of death was a combination of extensive blood loss and build-up of air in the chest cavity, severely compromising cardiac and respiratory function.  The chest wounds would have been enough to cause death, however the neck wound worsened the effects of the blood loss.  There were no defensive wounds on Mr Wiseman.
9. [9]
   After an eight day trial the appellant was convicted of murder.  He now challenges that conviction on the ground that the verdict is unreasonable and cannot be supported by the evidence.  Mr Lewis of Counsel, commendably appearing on a pro bono basis with Mr Nguyen of Counsel, identified the four matters by which it was contended that the verdict was unreasonable:

   1. (a)
      the level of the appellant’s intoxication;
   2. (b)
      the appellant’s statements in the police record of interview that he did not intend to cause the death;
   3. (c)
      the force required to cause the chest injuries was moderate; and
   4. (d)
      the force required to inflict the neck injuries was mild to moderate.

10. [10]
    The appellant’s outline expressly stated that there was no complaint about the trial judge’s summing up.  Further, before this Court there was no reliance upon aspects of self-defence.

Evidence at the trial

11. [11]
    The evidence at the trial can be examined in a number of categories.  Because the real issues at the trial were self-defence and intention, much of the police evidence need not be considered in detail.  As to the events themselves, only three people were present at the time the appellant stabbed Mr Wiseman.  Mr Wiseman, of course, is dead.  Ms Berghofer gave evidence that she had no memory at all of the events before, during and after the assault.  The appellant did not give evidence in the trial, but his record of interview with police was tendered.  Thus, the jury had the opportunity to see and hear the appellant’s interview, in which he made both inculpatory and exculpatory statements.

Evidence of Mr Wiseman’s mother, Ms Thorn

12. [12]
    Ms Thorn gave evidence that in 2015 she was living in Tewantin with Mr Wiseman and his brother.  Mr Wiseman was then about 21.  She saw Mr Wiseman several times on 26 December 2015, and in particular in the evening when she was looking for him.  She got a message from him to say he was at the river but she could not find him at the usual places.  At about 11.30 pm she saw him walking across the bridge with two other people.  Those two were the appellant and Ms Berghofer, though she did not know who they were.  She described Mr Wiseman as “very drunk, just stumbling everywhere”.^[1]  The appellant and Ms Berghofer were walking ahead of him “but they were, sort of, like waiting for him and were walking with him, kind of thing”.^[2]
13. [13]
    She stopped further down as she intended to pick Mr Wiseman up to take him home.  Ms Berghofer came over to her and asked if she had broken down, and she replied that she wanted to see if Mr Wiseman wanted to come home.  Ms Berghofer put her arm around the appellant and they were walking along, stumbling.  Mr Wiseman did not want to get in the car, and the appellant said “He’s all right with us, love”, and something like, “We’ll look after him”.^[3]
14. [14]
    She was asked to rate how drunk Mr Wiseman was on a scale of 10, and she estimated that he was at 10, saying he “Couldn’t hardly walk.  If I could have pushed him into the car, he would have fell in”.^[4]
15. [15]
    She then left to get a coffee, but came back and found them along the esplanade.  She described what happened:^[5]

“So I went along the esplanade and I saw them sitting down there.  And she was swearing her head off, I thought, at her boyfriend or something.  So I sat down there for a while.  And then it got quiet and I said to Nathan, “Do you want to come home?”  He said, “I’m okay.”  And then the guy said again, “We’ll look after him, love.  He’ll be all right with us.”  And then I sat down there for a little while [in her car] and then I decided to go home - - -”.^[6]

16. [16]
    On her way home she noted the time as being about 12.10 am.  She had a couple of hours sleep and then went back, by which time police had closed off the roadway.
17. [17]
    In cross-examination Ms Thorn initially resisted the suggestion that Mr Wiseman was an alcoholic and also resisted the suggestion that he was using the drug, ice.  Though that had been said in her police statement, she said she could not remember writing or signing the statement, but she knew that he had not been on ice.^[7]
18. [18]
    She also agreed that she sent two text messages when looking for Mr Wiseman.^[8]  The first was at about 9.44 pm, “You are not at river.  I’ve checked the whole river.  Where are you?”.  The second was at 9.52 pm, “Look, jerk, if you don’t answer phone, I’m telling the police you’re off with drug addicts.  Answer phone.”^[9]
19. [19]
    She was referred to two further texts, one at 10.30 pm asking “So where’s Lenny gone?  Who’s got Lenny?”,^[10] and the second one at about 10.52 pm, “Do you want to have a baby with the feral?  Wake up.”^[11]  She said she could not remember writing those messages but explained:^[12]

“Yeah.  Probably.  I don’t know.  I don’t remember writing that, but I must have been so friggin frantic and stressed, looking for him for hours, with him drinking, being paralytic, that I probably said something like that to keep him away from these feral people and all these ferals.”

20. [20]
    The final text, sent at about 12.05 pm, said:  “You and Josh [the brother] need to go to rehab for a year.”^[13]  She agreed that she had sent that text because they had both been drinking on the weekend.  She explained that the two boys drank at weekends and “they needed to stop drinking as much … their dad had to go to AA and stuff, so I worry that they’d turn into an alcoholic”.^[14]
21. [21]
    In re-examination she reiterated that Mr Wiseman was not using ice, notwithstanding that it was referred to in her statement.  She explained a reference in the statement that she had “been in a battle with Nathan and his drinking” in this way: “Well, if you sort of want to call it a battle of me being out to 4 am every Saturday night, that’s my battle. … I was very stressed about that.  I never got any sleep.”^[15]

Evidence of those at the park

22. [22]
    A number of witnesses were called from those who were at the park where the appellant and Ms Berghofer were drinking.  Their evidence was generally that members of the group were drinking wine, and some of them saw Mr Wiseman when he arrived.  Some of them saw him at the table with the others, drinking wine.^[16]
23. [23]
    Ms Christian said that Mr Wiseman was sitting by himself at one point and she asked him if he was okay, and he responded that he was “fine”.^[17]  So far as she could see Mr Wiseman and the appellant were getting on amicably.^[18]  She later went out on a boat to do some fishing, and when she returned and was walking towards the RSL, the appellant and Ms Berghofer “came on my left, walking on the pathway.  And [the appellant] said he had got into an argument with a group of fellows and to look at his face.  And his face was bleeding. … He just had blood on his face. …  On his cheek.”^[19]
24. [24]
    Ms Christian said that at the time, the appellant had a backpack on his back, and there was sufficient lighting to be able to see the blood on his face.^[20]  She described both the appellant and Ms Berghofer as being drunk, and Ms Berghofer was more intoxicated than the appellant.^[21]
25. [25]
    Mr Ogilvie saw the appellant and Ms Berghofer the following day.  He said the appellant “looked like he’d been in the wars … sort of a bit roughed up a bit”.^[22]  The appellant explained to him that “Some young fellows got into me last night and they beat me up”.^[23]  In cross-examination he confirmed what the appellant told him.^[24]  He was then shown his police statement which contained the following:  “I was sticking up for [Ms Berghofer] last night.  These young fellows got into me.  I lost my phone, too.”  Mr Ogilvie accepted that he had said that.^[25]
26. [26]
    Ms Lawrence said she could recall when Mr Wiseman arrived at where the group was drinking.  She said he “walked up to us and introduced himself”.^[26]

Witnesses who heard arguments, screams or other noises

27. [27]
    Evidence was given by a number of witnesses who resided in the area as to what they heard that evening.^[27]  The descriptions of what they heard varied.  Mr Harris gave this evidence:

    1. (a)
       Mr Harris woke up because of “quite a bit of yelling and disturbance”;
    2. (b)
       it was a lot of arguing and swearing and one person “seemed quite agitated”;  that person had “quite a young voice it sounded to me, a bit, sort of, squealy”; he said it sounded like a woman’s voice but more sounded like a man, and it sounded very agitated and intoxicated;^[28]
    3. (c)
       Mr Harris could hear bits of what was said by what he described as a group of people; someone said they knew members of the Bandido bike group, and another person said he knew a Vietnam vet; they were basically arguing and “sort of having a go at one another but this other person with the high pitched voice … would not stop … And it was all directed at that person”;^[29]
    4. (d)
       the arguing quietened down a bit as some of the group moved off;  Mr Harris thought they were on their way but still arguing as they went up the road; then they seemed to stop, there was quite a bit of arguing and then a few minutes later “I just heard three … bad screams from … a woman’s voice … And they were very loud”;^[30] and
    5. (e)
       it then went quiet and a few minutes later a woman walked past and said about three times “I’ve lost my man, I’ve lost my man”; that woman was heading back towards Tewantin.^[31]
28. [28]
    Mr Matthews said he went to bed at around 10.00 pm, but was disturbed later in the night “by some screaming and yelling … a fairly big disturbance noise wise”.^[32]  He looked out and could see only shapes.
29. [29]
    Mrs Matthews gave similar evidence but said that the noise she heard “was a really high-pitched scream” which appeared to her to come from a woman.  That woman was saying something in a high pitched volume, but she could not hear what the words were.^[33]
30. [30]
    Ms Dolezal said she was woken by noises coming from near Hilton Esplanade.  She said it sounded like “a bit of a fight” and she had the feeling there was more than two people, because the sound she heard was a “soft female scream”.  She “thought it was a female and maybe a couple of guys fighting”.^[34]  She agreed in cross-examination that the description she gave in her police statement was that the female let out a “low scream”.^[35]
31. [31]
    Ms Rolfe heard noises from people talking quite loudly out at the front of her unit and “heard a female screaming at one stage” a few minutes later.  She said it sounded “quite hysterical”.^[36]  She went outside and saw someone lying in the middle of the road.  At the same time, she saw a man running around the corner to the left, about 50 metres away.  That person was putting a backpack over his back as he was running.^[37]

Evidence about finding the body

32. [32]
    Mr Meale said he went for a walk and met Ms Rolfe who indicated to him a body lying on the road.  Mr Meale checked to see if the person was breathing but he looked lifeless.  He checked for a pulse but could find nothing.  The ambulance was called.  Mr Meale described the area as not having very good lighting, and “quite dark”.^[38]
33. [33]
    Ms Rolfe saw the body lying in the middle of the road and rang the ambulance.
34. [34]
    A paramedic gave evidence of what they saw when they arrived.  The body was lying on the back and there was no response.  When the shirt was cut off in order to CPR it was noticed that there was a stab wound to the left chest area and one in the throat.

General police evidence

35. [35]
    A number of police officers were called to give evidence about the results of their enquiries and searches.  Relevant factors include the following:

    1. (a)
       having been directed to an area on the Noosa River by Ms Thorn, one police officer located a blue esky in the sand near the water’s edge;^[39]
    2. (b)
       the area where the body was found was unlit;^[40]
    3. (c)
       CCTV footage was retrieved which showed Mr Wiseman in the company of members of the group who were drinking, at an earlier time in the evening,^[41] and at other times the appellant and Ms Berghofer in company with members of that group;^[42]
    4. (d)
       on the day following the death, Senior Constable Thornton saw the appellant at the Nambour Hospital, at which time the appellant advised that he was too ill to voluntarily attend the police station; he was escorted to the police vehicle and at that time appeared as if he was sore, walking slowly and needing assistance to get into the car;^[43]
    5. (e)
       at the Nambour Hospital on 27 December some of the appellant’s possessions were taken into custody by the police, including a knife; that knife was described as a “multi-tool”, which could be folded in on itself; the blade was not out, but closed;^[44]
    6. (f)
       on 27 December several photographs were taken of the appellant, showing that there appeared to be an injury to his left eye, some scratches and bruising to his left arm, and an injury to his left thumb;^[45] and
    7. (g)
       the hoodie worn by the appellant contained marks consistent with blood, and the appellant’s fold-up knife, called a “Leatherman”, contained a pointed blade which also gave a positive reading indicating blood;^[46] after being interviewed by police, the appellant accompanied the police and performed a type of re-enactment where he identified the areas that the group had been drinking, where he had thrown his shirt and knife into the river; the police were unable to find the knife or the shirt.^[47]

Evidence of the pathologist

36. [36]
    Dr Urankar gave evidence of the results of the autopsy on Mr Wiseman.  There were three major injuries, all sharp force injuries.  The first dealt with was the least significant of the three, though still a significant injury, namely to the back of the neck.  That was a linear incised wound that ran across the back of the neck, and was discontinuous as if the blade had jumped across bunched up skin.^[48]  It was 11 centimetres long, but each incision was smaller than that.  It was more superficial on the left, and got deeper on the right.
37. [37]
    The second injury was to the left side of the neck.  It was an incised wound about 15 millimetres long and about three millimetres wide.  It had penetrated through the bands of muscle that run down the neck at an angle from right to left.^[49]  The wound had cut through the muscle and into the tissue beneath, cutting the left jugular vein which caused bleeding.^[50]
38. [38]
    The third wound was a stab wound to the left chest wall.^[51]  The incision was 35 millimetres in length, angled from left to right.  The blade had gone through the skin and muscle layer, and then through the rib cage in a gap between the ribs.  The blade had gone through the sack around the heart, into the heart, and then out of the heart at the back and into the lung.  The lung had been cut twice and the reason for that was that there were two separate incisions into the heart even though there was only one entry point.  The two incisions into the heart were at two separate angles and Dr Urankar explained:^[52]

“And you can see the first is angled, sort of, maybe two to eight and the other one again 10 to four.  So there are actually two separate incisions at two separate angles.  So the blade has gone in once and it’s gone all the way from the anterior to the back of the heart – through, back and into the lung.  It’s come out again.  The angle has changed and then it’s gone back into the heart again at a different angle.  Through the whole - the front of the heart, the back of the heart and into the left lung again.”

39. [39]
    Dr Urankar could not say that the knife had definitely come out of the body as there was only one exterior wound but there were two movements inside.
40. [40]
    Dr Urankar said that the incisions to the heart caused over two litres of blood in the chest cavity and some blood in the sack around the heart, and that was potentially non-survivable.
41. [41]
    Looking at the mechanism of the incisions to the heart Dr Urankar said:^[53]

“Both of those go all the way through the heart into the lung.  So that means, one motion, the blade has gone all the way in, and then it’s come out to a point and it’s gone back in again.  Again, the knife’s changed angles to get the two separate appearing incised wounds on the heart.  Now, the way that can happen is, if I’m the assailant, I can put the knife in once, take it out and then push it back in again.  So that’s one way that it happens.  But things aren’t stationary, so the other way that it could also happen is, I push the knife in, the victim moves back, and then the knife goes back in again.  So either the body then moves back forward or the knife is reinserted.”

42. [42]
    Dr Urankar’s opinion was that the ultimate cause of death was the stab wounds to the chest and neck, with the stab wound to the heart and associated blood loss being fatal.  It would have taken mere minutes to die.
43. [43]
    As to the force required, Dr Urankar said to get through to the depth that the heart incision did, and to cut so many structures, required moderate force, whereas the neck wound required mild force.^[54]
44. [44]
    The blood alcohol level found in Mr Wiseman’s blood was 0.24 per cent.^[55]
45. [45]
    Dr Urankar could not say whether Mr Wiseman was lying, standing or kneeling at the time of the wound being inflicted, but there were no injuries on the face or head, or bruising underneath the scalp, that would have suggested a fall, hitting the head.^[56]

The appellant’s police interview

46. [46]
    The appellant was interviewed on 27 December 2015.  Relevant features of his account are set out below.  I have not attempted to resolve the discrepancies or inconsistencies in the account, nor rationalise the development of the account.  Those are quintessentially jury matters.
47. [47]
    The appellant met Mr Wiseman for the first time within the 24 hours before the interview.  Mr Wiseman had arrived at about 10.30 pm at Tewantin Anzac Park, and introduced himself before having a few drinks with the appellant and Ms Berghofer.^[57]
48. [48]
    The appellant noticed Mr Wiseman “getting quite friendly towards my lady friend”, and he “sort of … pulled him up” and “made it clear that she was my lady friend”.^[58]
49. [49]
    As they walked across the bridge towards Noosaville “one of these new red … little miniature four wheel drives” pulled up.  It contained Mr Wiseman’s mother, who asked if he wanted a lift home.  The appellant spoke to her, saying it was good to have a mother who looks after you and wants to pick you up, but Mr Wiseman made it clear he wanted to stay with the appellant and Ms Berghofer.^[59]
50. [50]
    They moved on to the river bank where they continued to drink.  The appellant said Mr Wiseman’s mother had returned when they were sitting there, again asking if Mr Wiseman would return home.  Mr Wiseman said he was going to stay, notwithstanding the appellant saying he thought he should go home.^[60]
51. [51]
    It was at about that point, according to the appellant, that he objected to what was happening between Ms Berghofer and Mr Wiseman, and he and Ms Berghofer argued.  Then, “all of a sudden I grabbed … the cask and I did flip it at one stage … ’cause I wasn’t getting any sense out of anyone so I threw it in the river … which fired my lady friend up”.^[61]
52. [52]
    He explained the source of the argument before he threw the cask of wine into the river.  It was that he had heard Mr Wiseman “whisper something to me lady friend … like a bit of a whisper … and I thought oh what, are they planning on running off together”.^[62]  He went on:^[63]

“That was a bit of jealousy on my behalf … but then I found out that he did want to grab her and take off with her … I mean that’s why he hit me here.”

53. [53]
    Ms Berghofer got upset about her cask being thrown into the river.^[64]  At that point the appellant felt a “crunch right on one side”, which came out of the blue.^[65]  Mr Wiseman had “king hit me in the top of the eye”, on the left.  This “sparked fumes up”.  At that time Ms Berghofer “freaked out” and she ran back across the bridge to Tewantin.^[66]
54. [54]
    The appellant followed Mr Wiseman down Hilton Street.  Mr Wiseman said to the appellant that he had no interest in Ms Berghofer, and the appellant asked him why he had hit him in the eye.  Before he could say anything else “he’s … actually hit me from round the back of the head again as I was walkin’ away, ’cause I was gonna leave him and … go back over to the bridge and find my lady friend”.^[67]
55. [55]
    When the appellant was hit again from behind, that had “revolved [sic] in a bit of a scuffle on the ground”.  In the course of the scuffle something “twisted me … right kidney”.^[68]
56. [56]
    The appellant explained what happened next:^[69]

“… I had … one of those stainless, stainless steel knives … that I’d found … early that day down the fishing … boat ramp … and … because of the result of us being on the wine and … me being, as pissed as I was … got a little bit, I suppose … into the argument we had over our lady friend ‘cause I suppose I might be, oh if it was a bit of jealousy but I think it was a bit of jealousy on both sides of us … over my lady friend. … but … in the foreseen [sic] scuffle I couldn’t I sort of like because of the impact of twisting me um kidney and landing on the bitumen on my knees … and being hit from behind again sort of goes me a bit on the wine.  So I … went like that I put the um I pulled that blade out and I, I think yeah I stuck him, stuck him in the chest but not real, not real deep you know enough for him to try and let me go.  Right ’cause I didn’t have any intent, I had no intent for this – right what I wanted to do is I wanted him to get off me and go his own way you know what I mean?  I didn’t, I really didn’t know that this was going to turn out like this.”

57. [57]
    The appellant continued the explanation saying that he had walked away and then “suffered some blows in the back again”, and “that’s when I’ve flipped him to the ground and um I hit him in the neck with the, with the knife to slow him down.  Unfortunately due to ah alcohol I didn’t realise that I went overboard … I didn’t realise that I actually went that far you know what I mean?”.^[70]
58. [58]
    The appellant then characterised what he had done as “in that case I’m looking at … like self-defence”.^[71]
59. [59]
    He said he “freaked out” and that forced him to throw the weapon into the river.  He said he had thrown not only the knife into the river, but his shirt as well because it had blood on it.  He then went back across Anzac Park and located Ms Berghofer walking around on her own.  They went to Ward Park and slept there that night.  The next day he had a pain in his right kidney and ended up going to the hospital by ambulance.
60. [60]
    The appellant characterised what he had done as a “drunken jealousy thing” and said that he was “actually still spinning out that … just with just a little bit of aggression on the wine you know I didn’t think it’d lead to some young bloke’s death … but yeah the drink was getting us both jealous over my lady friend like … he liked her and I’ve been with her for a while … and I suppose if I get fond of a woman I can get jealous too”.^[72]
61. [61]
    The appellant maintained in the interview that it was Mr Wiseman who hit him first, and when he did so Ms Berghofer ran away.^[73]  The appellant reiterated that when Mr Wiseman first hit him, he pursued Mr Wiseman down the road.^[74]
62. [62]
    The appellant estimated that the three of them had shared three wine casks that day, which was about 15 litres of wine.^[75]  The appellant himself was filling a 600 ml water bottle with the wine, but could not estimate how many of those he had had during the day.  In response to being asked how often he would drink cask wine, he said that he had been “dry for two and a half years”.^[76]  But, the appellant said he had been drinking wine since he was 12 years old.^[77]  When asked how intoxicated he thought he was, he offered the view that if he had been put on a breathalyser he would have “went over about three times”.^[78]
63. [63]
    He explained that he thought he and Mr Wiseman had frightened Ms Berghofer because “she took off before all this happened” and “she wasn’t even in the scene … took over the bridge I actually seen her running down the road [and] I said Where are you going?  She said I’m getting away from youse two”.^[79]  He said “she ran across the bridge ‘cause she seen the blood here on my face”, and “I was chasing him down there like towards Noosaville way which he went around to Hilton Street”.^[80]  Once again he gave the sequence as Mr Wiseman hitting him, then running away, and the appellant chasing him and then a scuffle in the street.^[81]
64. [64]
    The appellant was asked what made him think of going for the knife when he was in the scuffle and he responded:^[82]

“Um, I don’t know.  I think it’s just … me personally I’ve got to face the fact that I done wrong here … but I am blaming the wine.  … but … I was a little bit lopsided and I don’t think that he’d actually had as much wine as I did … so he’s a little bit more with it than I was.  But … to tell you the truth I really don’t know why I … pulled it out to tell you the truth.  When you live on the street man you’ve got to have these tools … To cook a barbie or cook a feed or, you know butter your bread.”

65. [65]
    The appellant again described the sequence from when Ms Berghofer ran away.  He asked Mr Wiseman what it was all about, and Mr Wiseman responded that he did not want any trouble.  Then the appellant said he did not want any trouble either and the appellant walked away, but “as I walked away he hit me from behind again right which it, with the result put me on my knees and my arse and that’s when that kidney thing started”.  He went on:^[83]

“… I thought if I don’t do something here he’s going to hurt this lad … ‘cause I’m not getting any younger … I’m nearly forty myself … and … at one stage there we were wrestling on the bitumen … I couldn’t get him off me at one stage there and I think that’s where … I pulled it and done the chesty’s you know. … Well we were wrestling right and I couldn’t get him off me so I grabbed that there out like that and I went up that way and that sort of made him let go he’s gone bang like that.  Then I let him up then we got up again he was all right even after that … because I know for a fact that I didn’t fuckin’ hit him that hard with it I just pressed it in there enough for him to feel the pain to let me go … But … as we got into another scuffle right he’s actually twisted, twisted my kidney there so I’ve flipped him over and grabbed him and I don’t know what happened mate I just blanked out and I thought I’d only put it there enough to fuckin’ pull him up mate I didn’t realise that I went that far.”

66. [66]
    The appellant then reiterated that Mr Wiseman was on his back at the time he inserted the knife into the neck.^[84]
67. [67]
    The appellant again explained the sequence from when Ms Berghofer left.  It was that he followed Mr Wiseman down to Hilton Street, they had an exchange of words where each said they did not want any trouble and then the appellant walked away.  As he walked away he was either hit or kicked in the back and that was when another struggle started.  It was during the second struggle that the knife was produced.^[85]
68. [68]
    The appellant was asked whether he decided to draw out the knife because he felt threatened by Mr Wiseman, so threatened that he had no option.  He responded: “Well … no I didn’t feel threatened right, but I felt concerned because every time that I turned my back that’s when he, you know, attacked me when I wasn’t lookin’”.^[86]
69. [69]
    The appellant described the sequence again at a later point of the interview, but this time added that after he turned and walked away, he was kicked in the back so he “rushed him” and they ended up wrestling on the bitumen:^[87]

“ … and I’ve spun around and … I’ve rushed him and we’ve … ended up … within this some sort of form of fuckin’ wrestle on the bitumen … at first it was standing up and then got down, that’s why all those knees and that were scarred and … that’s when I pulled that I felt that there and I thought, ‘cause I couldn’t get him off me … cause I’ve … I’d been drinkin’ all day and he’d only been startin’ to drink that night and that’s when I fuckin’ hit him twice there to let me go … and he’s let me go … I had that knife sittin’ down in here”.^[88]

70. [70]
    That was the first time that the appellant said that he had stabbed the chest twice.  He said that he did not say anything when he pulled the knife out.  Then for the second time the appellant said that there were two stabs to the chest:^[89]

“No, I got it out like that and I said Listen I said get off me right I said because I need to get up and he goes No … he said I’m fuckin’ I’m fuckin’ takin’ fuckin’ Lilly or something and I said No you’re fuckin’ not. Right ‘cause … the argument was over the woman right - the bottom line but anyway … and that’s when I give him two ones there.  Right there and … I done it to where it was enough to fuckin’ let him, to you know let me go. … Oh I’m not pretty sure, pretty sure it was up here or somewhere [indicating the chest area] … I know it was the chest area …”

71. [71]
    Towards the end of the interview the appellant acknowledged that the stab to the chest area could possibly have been a lot harder than he had suggested.^[90]
72. [72]
    As he walked away and back across the bridge the appellant gave thought to whether he should call an ambulance to attend to Mr Wiseman, but he had lost his phone.^[91]
73. [73]
    The appellant’s interview while conducting a re-enactment was also before the jury.  In it the appellant explained the sequence as:^[92]

    1. (a)
       he threw the cask into the river, causing Ms Berghofer to be upset; they argued;
    2. (b)
       he was then king-hit by Mr Wiseman, who headed away;
    3. (c)
       Ms Berghofer ran off, and he followed Mr Wiseman;
    4. (d)
       he caught up with Mr Wiseman, remonstrating over the king-hit; they spoke, each saying they did not want further trouble, and the appellant walked away;
    5. (e)
       he was again king-hit, in the back (in the kidney area) and on the head;
    6. (f)
       then the “foreseen scuffle happened”;
    7. (g)
       they were both on the ground, struggling and wrestling;
    8. (h)
       the appellant could not get Mr Wiseman off, so “that’s when I pulled that … grabbed that out of there … and that’s where I hit him in the ribs there twice to let me go”;
    9. (i)
       Mr Wiseman let the appellant go and got up;
    10. (j)
        the appellant walked away but Mr Wiseman tackled him to the ground again;
    11. (k)
        that was when the appellant flipped him over and stabbed him in the neck; and
    12. (l)
        the appellant then walked or ran back across the bridge; he realised he had gone too far, and threw the knife and shirt into the river because he had “fucked up”.

Consideration

74. [74]
    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^[93] requires that this Court perform an independent examination of the whole of the 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.
75. [75]
    The role of the appellate court was recently restated in Pell v The Queen:^[94]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

76. [76]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[95]  As summarised by this Court recently in R v Sun,^[96] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[97] in which the court must have “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.”^[98]

77. [77]
    Counsel for the appellant relied on four matters, contending that the verdict was unreasonable.  I shall deal with them in turn.

Level of the appellant’s intoxication

78. [78]
    The first is the level of the appellant’s intoxication at the time.  It is true to say that the appellant was intoxicated on the night, having engaged in the drinking session for most of the day.  He estimated that the three of them shared three casks of wine, and that if he had been put on a breathalyser he would have gone more than three times over the limit.  Further, he said he had been drinking wine for about nine hours.  Those descriptions may have been rightly thought by the jury to have been somewhat vague, or at least unreliable.  However, there can be no doubt that he was in fact intoxicated.
79. [79]
    However, in my view, it was open to the jury to form the conclusion that the state of intoxication was not so gross that the appellant was incapable of forming the requisite intent to kill or do grievous bodily harm.  There are a number of reasons for that conclusion.
80. [80]
    Firstly, on the appellant’s own account he was a hardened drinker, having started drinking wine at the age of 12.  Although he said he had been “dry” for some time the prodigious drinking on the day in question suggests a return to something of long experience.  That, together with the vagueness of the estimate of quantities of alcohol consumed, left it open to the jury to conclude that he was still capable of forming intent.
81. [81]
    Secondly, the appellant’s ability the following day to give a detailed account of what had happened tells against a conclusion that his state of intoxication was so gross that he could not form the requisite intent.  He gave an accurate description of Ms Thorn’s car including colour and type, an accurate description of the exchange between himself and Ms Thorn, an accurate recounting of the number of times and where she returned to try and take Mr Wiseman home, and most importantly remembered enough to recount that he had stabbed Mr Wiseman twice.  That piece of evidence is significant.  At the time he said that he did not know that the autopsy revealed that the stabbing had created two wounds in the heart and lungs.
82. [82]
    Thirdly, the appellant’s actions on the night do not bespeak a state of intoxication so gross that he could not have formed the requisite intent.  He had a coherent exchange with Ms Thorn on two occasions, pursued Mr Wiseman for over a hundred metres, ran away afterwards (consciously tracking down where Ms Berghofer was), and considered whether he should call an ambulance to attend to Mr Wiseman.
83. [83]
    Fourthly, evidence of those who saw him the next morning was to the effect that he was not affected by alcohol.  For example, the paramedic, Mr Moore, offered that conclusion,^[99] as did the doctor who examined him.^[100]
84. [84]
    Fifthly, on the appellant’s own account his level of intoxication was not so great that it prevented him from forming jealous thoughts and resentments.  He was capable of forming the view that the interaction between Mr Wiseman and Ms Berghofer suggested some attraction, which he jealously resented.  That caused him to intervene, warning Mr Wiseman off.  The jury could have concluded that his intoxication diminished his power to resist such thoughts, which then turned into acts of aggression.

Statements in the record of interview that he did not intend to cause the death

85. [85]
    The second factor was the accused’s statements in his record of interview that he did not intend to cause the death.  There are difficulties confronting acceptance of this contention.
86. [86]
    Firstly, the jury were not obliged to accept those statements as truthful.  There were reasons why the jury may have had reservations about his account, not least being his repeated insistence that Ms Berghofer could not possibly have seen anything of the struggles when the last he saw of her was when she ran away, his acceptance that he did not feel threatened at any time, the fact that it was likely an attack fuelled by jealous rage, and the improbability of Mr Wiseman having the capacity to resume fighting after have been stabbed twice through the heart.
87. [87]
    Secondly, the absence of intention to kill is not, of itself, a complete answer as the jury could have accepted that the appellant had the intention to inflict grievous bodily harm.  That flows from the fact that he deliberately took the knife out of his pocket and inflicted the two stabs to the chest in a conscious effort to make Mr Wiseman get off him, and conceded that the stabs may have been more forceful than he had related.  Therefore, the jury could reason, the appellant intended to stab Mr Wiseman with a knife, and to do so into the chest where the likely internal organs included the heart and lungs.
88. [88]
    Thirdly, given that the stabs were made in the course of a somewhat violent struggle, it was significant that the appellant explained that he flipped Mr Wiseman over before stabbing him in the neck.  On that basis Mr Wiseman was then on the roadway with the appellant above him.  Based on the appellant’s account the jury could accept that the sequence of events was fast, so that very little time elapsed between the chest stabs and the neck stab.  While the chest stabs were said to be merely to get Mr Wiseman off him, the neck stab was different, and, the jury could easily infer, was accompanied by the requisite intent.  The close temporal proximity of the chest stabs to the neck stab, and the fact that both were part of the one ongoing altercation, provided a foundation for the jury to conclude that at the time of the stabs to the chest, the appellant held at least the intent to cause grievous bodily harm.

The force required to cause the injuries to the chest was moderate

89. [89]
    The third factor was that the force required to cause the injuries to the chest was moderate.  This was a contention that the jury could not safely infer intent to (at least) cause grievous bodily harm because the force used to inflict the fatal stabs was only moderate and not worse.  I do not accept this contention.  The pathologist’s opinion as to the likely force was on the basis that the knife had penetrated muscle and tissue, but between two ribs.  In other words, there was no solid object to prevent the knife from entering.  Further, as the autopsy proved, there were two stabbing motions that affected the heart and lungs, not one.  The jury were not obliged to accept the sequence of the stabbing that the appellant referred to in his interview.  Therefore the fatal stabs were inflicted in the course of a struggle, and on one view (as the jury could find) at a time when the appellant had Mr Wiseman on the ground.  Given those matters the fact that the force required was only moderate does not make out the contention.

The force required to inflict the neck injuries was mild to moderate

90. [90]
    The final factor was that the force required to inflict the neck injuries was mild to moderate.  This suffers from the same vice as the previous point.  The blow to the neck was deep enough at the requisite point to sever the jugular artery.  It was inflicted in the course of a struggle.  It was caused by the fact that the appellant pulled out a knife and used it, when the struggle had previously only involved fists or feet.  In those circumstances the fact that the force for the neck injury was mild to moderate takes the matter no further.
91. [91]
    The jury were correctly directed that they could not find the requisite intent beyond reasonable doubt unless it was the only rational inference open.  Absent the appellant’s statements as to how the events happened, the evidence established that he killed Mr Wiseman by stabbing him twice through the heart and into the lung, and by stabbing him once in the neck cutting the jugular vein.  The nature of the injuries (two stabs into the heart, in particular) and the force required suggest deliberate acts.  The jury were not compelled to accept the appellant’s version of events in the interview, particularly as to the sequence of the stabs, and why they were administered.  Nor were they compelled to accept the appellant’s statements as to his intent at relevant times.  The jury had the advantage, which this Court does not, of seeing and hearing the interview.  What they made of that account was quintessentially a matter for them, and not for this Court to supplant.
92. [92]
    Ultimately the jury was faced with evidence upon which it was open to conclude that the appellant was the aggressor and had formed the intent to at least do grievous bodily harm.  He had formed a jealous rage over what he perceived to be impermissible advances or intentions on the part of Mr Wiseman towards Ms Berghofer.  When the initial blow was landed by Mr Wiseman matters could have ended there, but for the fact that the appellant chased Mr Wiseman and overtook him over the course of a hundred metres or so.  What then followed, on his evidence, was an exchange where each outwardly declared that they did not want any further trouble, and the appellant turned to walk away.  At that point the appellant was hit again and it was only then that the struggle commenced, in the course of which the appellant took a knife out from his pocket and stabbed Mr Wiseman.  On that evidence it was, in my view, open to the jury to conclude that the appellant had the requisite intent.
93. [93]
    That conclusion is supported by the appellant’s conduct after the stabbings.  Leaving Mr Wiseman on the ground, the appellant went back across the bridge towards where Ms Berghofer had gone.  He had the presence of mind, prompted by the fact that Mr Wiseman had not got up, to conclude: (i) he should perhaps call an ambulance to attend to him, thus acknowledging that serious injury could have been inflicted; this factor tells strongly in favour of a conclusion that he held at least the intent to cause grievous bodily harm; and (ii) he should dispose of both the knife and his shirt, which had blood on it; this, he said, was prompted by the realisation that he had gone too far.
94. [94]
    The ground of appeal having failed, I propose that the appeal be dismissed.
95. [95]
    LYONS SJA:  I agree with the reasons of Morrison JA and the order proposed.
96. [96]
    NORTH J:  I have read the reasons of Morrison JA.  The evidence of Ms Thorn suggests that the deceased (Mr Wiseman) was grossly intoxicated.  Concerning the sobriety of the appellant the evidence is less emphatic but, one can readily infer from the evidence that the appellant too was intoxicated.  The learned trial judge directed the jury appropriately upon the issues of intoxication and intention.  There is no challenge to any of his Honour’s directions on the other issues at the trial such as self-defence.  The evidence at trial identified by Morrison JA, nevertheless supported an inference beyond reasonable doubt that when he “pulled that blade out” the appellant intended to cause either the death of Mr Wiseman or grievous bodily harm.  For the reasons given by Morrison JA the appeal should be dismissed.