R v Hanley[2020] QCA 276

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have read the reasons of Davis J and agree with those reasons and the order his Honour proposes.
2. [2]
   McMURDO JA:  I agree with Davis J.
3. [3]
   DAVIS J:  The appellant appeals against his conviction on 26 November 2018 of one count of murder.  The only count on the indictment was:

“that on the thirteenth day of October, 2016 at Cypress Gardens in the State of Queensland, KEVIN PATRICK HANLEY murdered MATTHEW DAVID MORCUS.”

The notice of appeal and relevant principles

4. [4]
   The appellant raised three grounds of appeal, namely:

“1. That the verdict was unreasonable or cannot be supported having regard to the evidence; and

2. That the verdict was unreasonable or not supported by evidence capable of establishing ‘intent to cause death or grievous bodily harm’; and

3. That there was a miscarriage of justice in leading evidence of lies told by the Appellant regarding the whereabouts of the firearm that was later ruled inadmissible during the trial.”

5. [5]
   Contained within s 668E of the Criminal Code, are three limbs^[1] providing bases upon which this court may quash a conviction, namely:

   1. (a)
      the verdict is unreasonable or cannot be supported having regard to the evidence (the first limb; “the unreasonable verdict ground”);
   2. (b)
      the wrong decision on any question of law (the second limb; “the legal error ground”); and
   3. (c)
      on any ground whatsoever there was a miscarriage of justice (the third limb; “the miscarriage of justice ground”).^[2]
6. [6]
   A conviction will fall pursuant to the first limb even if there is evidence capable in law of proving the charge^[3] if it was not open on the evidence for the jury to be satisfied beyond reasonable doubt of guilt.^[4]
7. [7]
   Here, there is evidence which, if accepted, is capable of supporting the conviction in the sense of proving all elements and disproving all defences and exculpations.^[5]  However, as was accepted in Coughlan v The Queen,^[6] it is not sufficient that there is a pathway to conviction.  The question is whether on all of the evidence it was open to the jury to convict.  It is necessary for this court to perform an independent examination of the evidence^[7] and to determine whether it was open to the jury to convict the appellant or, in other words, whether it was open to the jury to be satisfied of his guilt beyond reasonable doubt.^[8]
8. [8]
   In performing that examination, regard must be had to:

   1. (a)
      “… 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”;^[9] and
   2. (b)
      the advantage enjoyed by the jury over a court of appeal in seeing and hearing the witnesses give evidence at the trial.^[10]
9. [9]
   By grounds one and two the appellant relies upon the unreasonable verdict ground. Both grounds one and two can be considered together as “intent to cause death or grievous bodily harm”^[11] is an element of murder.^[12]  Ground two is effectively subsumed in ground one.  Ground three relies upon the miscarriage of justice ground.

The evidence

10. [10]
    The appellant, the deceased, Rachel Binns and Beyana Kingston were all at the Millmerran Bowls Club on 13 October 2016.  Ms Binns was in a romantic relationship with the deceased but the two lived at separate residences. Beyana Kingston was Ms Binns’ daughter and was 11 years of age at the time.
11. [11]
    At the bowls club an argument broke out between the deceased and Ms Binns.   The argument involved the deceased knocking or chesting Ms Binns and probably attempting to head butt her.  The appellant intervened and removed the deceased to the car park, but the deceased later returned.  Upon the deceased’s return, a fight ensued between the deceased and the appellant.  That was broken up by others at the bowls club.
12. [12]
    Ms Binns, Beyana and the deceased left the bowls club together.  After delivering the deceased to his home, Ms Binns travelled with her daughter, Beyana, to her home.
13. [13]
    From her home, Ms Binns attempted to telephone the appellant.  She could not raise him.  Ms Binns then telephoned Kay Bruin, the appellant’s partner, and spoke to her for approximately 12 minutes commencing at 8.31 pm.  Ms Bruin was not at the bowls club during the evening but was at her home which she shared with the appellant.  There was another telephone call for about 15 minutes again when Ms Bruin contacted Ms Binns.  That occurred at 8.48 pm.
14. [14]
    There is dispute about what the two women discussed in those telephone conversations.  Ms Bruin’s version is that Ms Binns was generally frightened of the deceased, had expressed concerns that he might attend at her house and that she had locked herself in, hid her car and turned the lights off.  Ms Binns said that while she told Ms Bruin about the altercation at the bowls club, she did not express to Ms Bruin any fear of the deceased.
15. [15]
    Sometime after the telephone conversation which commenced at 8.48 pm, the appellant arrived home.  Then at 9.30 pm, Ms Bruin received a text message from Ms Binns which said “He’s here”.  Ms Bruin took that to mean that the deceased had arrived at Ms Binns’ house and Ms Bruin and the appellant decided that they should go there.
16. [16]
    Ms Bruin and the appellant then travelled to Ms Binns’ home.  The appellant took with him a .22 calibre rifle.
17. [17]
    There were grounds for the appellant to be concerned that he might be met with aggression by the deceased.  The deceased was on parole having been convicted of an offence of violence.  As already explained, there had been a physical altercation between the deceased and Ms Binns and a physical altercation between the deceased and the appellant at the bowls club.  He knew of the text message that had been sent by Ms Binns to Ms Bruin and he knew (because Ms Bruin told him) of the contents of the telephone conversation between Ms Bruin and Ms Binns.  The deceased, he thought, possessed a pistol.
18. [18]
    It is easy to accept that Ms Bruin and the appellant set off for Ms Binns’ house out of concern for the safety of Ms Binns and Beyana.  The critical events though are the ones that occurred at Ms Binns’ house.
19. [19]
    Ms Binns, in her evidence in chief, said she was in her home speaking to the deceased.  She saw the appellant standing just outside the door.^[13]  Ms Bruin was outside standing behind the appellant.^[14]  Ms Binns heard the appellant say something to the deceased like “Do you wanna go now?” and then pulled the trigger of the gun.^[15]
20. [20]
    After the deceased was shot, Ms Binns telephoned emergency 000 and reported the shooting.  She was asked by the 000 operator “Was this accidental?” and she responded “Yes”.  She was then asked “Was it an accidental injury?” and again she said “Yes”.
21. [21]
    Ms Binns made various statements to police.  In cross-examination, counsel for the appellant at trial^[16] established bases upon which the jury might doubt Ms Binns’ evidence.
22. [22]
    In particular, she said that she sent the message “he’s here” to Ms Bruin “just to generally let her know” that the deceased had arrived rather than out of fear of the deceased.  In her earlier statement she said she “hid [her] car around the back” of her house. In her evidence she denied that she did that so that the deceased would not know she was home.^[17]  In a police statement Ms Binns said that she turned the lights off when she arrived home.  In evidence she said that was not done because she was fearful of the deceased.^[18]  She accepted that in her previous statements she said that she said to Ms Bruin of the deceased “He’s in one of his moods” and that she said to Ms Bruin “Can you keep your phone near you in case I need to ring you” and told her “Just be careful because he [clearly a reference to the deceased] might go to your house if he doesn’t come to my house looking for Kev”.^[19]  She maintained in evidence that she was not frightened of the deceased.^[20]  Ms Binns denied in evidence that she was assaulted by the deceased at the bowls club notwithstanding that she previously made a statement to the effect that she was.
23. [23]
    Ms Binns’ evidence was, it was submitted both at trial and on appeal, not logical.  In truth, it was submitted, Ms Binns was assaulted by the deceased at the bowls club, she was fearful of him and she messaged Ms Bruin for help and protection.  The appellant also relied upon Ms Binns’ conversation with the 000 operator.  It was said that Ms Binns’ evidence at trial was inconsistent with her representation to the 000 operator that the shooting was accidental.
24. [24]
    Importantly, in her statement to police, Ms Binns said that she saw the appellant enter the house, saw the gun and turned away to ensure that Beyana was not in the room.  She told police that while she was turned around she heard a scuffle and a bang.^[21]  Ms Binns, in evidence, said that was not true but she had been told by Ms Bruin to lie and to say there was a scuffle in order to exculpate the appellant.^[22]
25. [25]
    Ms Bruin gave this evidence in chief:

“And could you see whether Kevin^[23] was carrying anything?---Yes. I thought he had a stick and was using it as a walking stick, and I thought that was a good idea because we’d left home so quickly, I didn’t pick up my own walking stick. So, as I was walking, I felt with my feet for a stick, and I stopped and picked one up and then continued following him.

All right. So can you tell us what visibility was like at that time?---Underneath the wattle, it was dark, but you could see shadows and different lights. The moon was getting through some of the undergrowth but not all of it, until we came out into a cleared area.

And once you were in the cleared area, how was visibility?---Very good because it was a supermoon that night, and Rachel’s house is in the middle of a clearing, and there is a small rock wall, and the moon was just coming over the rock wall and shining directly onto the front of her house.

All right. So can you tell us from there what you saw?---Kevin had told me to wait at the gate but, because of the bushes around the gate, I couldn’t see too much. So I moved along. There’s a low wire fence to contain the dog. So I moved along it until I could get a good sight of the door.

So at that time did you stay outside the dog fence in relation to the property, but - - -?---Yes.

- - - walked along the dog fence - - -?---Yes.

- - - until you could see the front door?---That’s right.

So at the time that you did that, where was Kevin?---Kevin had gone to the front door.

And could you see anybody else?---I couldn’t see anybody else at that point until I got to where I moved backwards to get to where I was. And I could see something lighter shaded on the door. I could see Kevin’s silhouette and that’s when I realised that it was a gun because I could see the silhouette of the gun butt, the stock wooden part, and I realised it was a gun.

If I can just ask you to stop there. When you say you realised it was a gun, who had that gun?---Kevin.

And by that, are you referring to the item that you had seen him carrying earlier - - -?---Yes.

- - - that you thought was a stick?---Yes.

So it wasn’t until the point that you had moved to a view of the front door that you first - - -?---Yes, in the moonlight.

- - - first realised that Kevin had a gun and that was because you could see that in the moonlight?---Yes.

Right. And at that point, whereabouts was he standing in relation to the front door?---He was right in front of the front door.

Was any part of him inside the house?---Maybe. I can’t say – from about the thigh down because that blended into darkness. But he appeared to me to be still right at the doorway, but not inside the doorway.

All right. And what was the next thing that you saw from there?---The lightness that I saw towards the top of the door moved suddenly down the door, and there was a squeaky noise like – like new leather shoes and then the gun went off. And then Beyana screamed and Kevin said my name, called my name. It wasn’t asking me to come. It was just a statement. And I dropped the stick and I ran as fast as I could to the door. As I got to the door, Rachel was coming out. The lights were on then. They weren’t on before.”^[24]

And this evidence in cross-examination:

“Okay. Now, as you were coming closer to the house, I’d suggest to you that you would have been in a position to hear any sounds or voices that were coming from the house?---As we got closer to the house, yes.

And what did you hear?---Shouting. Rachel^[25] was shouting, ‘Just go.’ Matthew^[26] was shouting, ‘Why did you change the combination on me?’ He was also – he was also calling her a fucking cunt and a slut and, ‘Why did you change the combination?’ And she just kept saying, ‘Just go, Matthew.’

Okay. Now, the rifle that Kevin had, which you saw - - -?---Yes.

- - - you were aware that Kevin had possession of a gun prior to that night, weren’t you?---A couple of years prior to that, he’d borrowed a gun because we’d had some problems with wild dogs.

All right. And when he got to the door of the house, in which direction was this – what you thought was a stick, but which you then – it dawned on you was a gun, which direction was it pointing?---The barrel part was down towards the ground, and the stock - is that what it’s called, a stock?

Well, the wooden part might be called a stock?---Yeah, yeah, that was up.

Okay. Now, you had told Kevin some things before you drove away from your place to Rachel’s place, hadn’t you?---Yes.

You had told Kevin that Matthew was at Rachel’s place and that she was frightened?---Yes.

And when Kevin went down there, I’d suggest to you that Kevin – that Matthew said, ‘Leave her alone’?---Yes, it didn’t make sense.

But what I’m going to suggest to you is that you told the police that you heard Kevin say, ‘Leave her alone’?---Oh, yes.

Yes?---Matthew also said that – he said that Kevin wanted her.

I see. And what I suggest to you is that Matthew said, ‘Give it to me. Give it to me’?---Yes.

And that was said prior to the discharge of the weapon?---Yes.

And there was a sound of – there was – you heard, I’d suggest, a sound of scuffling?---Yes.

Now, can you – doing the best you can, just describe what that sounded like to you?---The scuffling noise that I was trying to describe to the police that night, it sounded like new leather shoes squeaking and rubber soles on concrete.

Do you recall what Kevin was wearing on his feet?---Kevin always wears thongs.”^[27] (emphasis added)

26. [26]
    Beyana was in her room at all relevant times.  She therefore saw nothing of the shooting.  She did though say that she heard relevant things.  In her interview with police, she said:

“BEYANA Like I could hear like grunting and the, like feet, feet sort of like shuffling, against the concrete.

POLICE OFFICER Feet shuffling. Mm.

BEYANA Like that.

POLICE OFFICER And that’s, where was that, inside?”^[28]

And later:

“BEYANA It was sort like a mix between scuffling and stomping

POLICE OFFICER And what other noises?

BEYANA Um, sort of grunting

POLICE OFFICER Sort of grunting? What do you mean sort of?

BEYANA MM, ha, I feel so weird doing that. Like . . .

POLICE OFFICER Could you tell who was doing what?

BEYANA Um. not really.

POLICE OFFICER OK, when was it that you realised that Kay^[29] was here?

BEYANA Um, I could hear her like before, like, I could hear her like sort of trying to like calm everybody down, like she was saying, it’s like hard to explain.

POLICE OFFICER Well at what point was that that she was trying to calm everyone down?

BEYANA When Matthew and Kev were fighting. I could hear her like trying to like talk some sense into them, almost.

POLICE OFFICER And was that, you say when they were fighting, was that when they were shouting or putting, saying insults to each other

BEYANA Yeah and they were like, they weren’t really like (inaudible) some of it was insulting each other and other bits were like just like arguing.

POLICE OFFICER Remember what they were arguing about? I don’t know if we covered that.

BEYANA Um, I don’t really know they were just

POLICE OFFICER Why was it do you think Mum said ‘Oh shit’ when she heard the knock

BEYANA I don’t really know but I think it was like after she said ‘Oh shit’ then I heard Matt and Kev fighting like as soon as she said it.”^[30]

27. [27]
    In her pre-recorded evidence, Beyana said:

“Okay.  There was quite a degree or argument, though, wasn’t there, between your mum and Mr Matthew Morcus after he arrived?---At times. Other times it wasn’t really that – up to that degree of yelling at each other.

Okay. All right. And with – in your interview with police, you have told them what you remember about what happened when Kevin and Kay arrived.  Now, you said that you could hear them, meaning Mr Matthew Morcus and Kev Hanley:

Hear them, like, saying, like, insults.

And you said that it was:

Mostly Matt saying stuff to Kev, like, ‘you can’t push me.’

Now – and you said that you couldn’t remember anything that Kev was saying. Now, I want to ask you about – about that, and ask you whether you remember any – hearing any of these words being said: that Kevin, Mr Hanley, said to Matt, ‘get out. Just go home.’ Do you remember that being said after - - -?---I’m not sure – I’m not sure, because similar things were said at the bowls club, so it could be something from then and it’s just carried on to there, or I could just be remembering it incorrectly because of similar things.

Okay. And – thank you for that. And, as you’ve noted, there was an incident at the bowls club as well as this. I’ll just ask you a couple more things about what – whether you – whether you heard things like this at your mum’s house, that – and again, I’m going to use some swear words – that Matthew Morcus said, ‘fuck off, old man.’ Do you remember something like that being said by Mr Matthew Morcus?---No.

Okay. And that Mr Matthew Morcus called Kevin weak and an old man; do you remember hearing anything like that?---No.

Okay. Now, you – so, when you spoke to the police – and obviously much closer in time to the events – you said that:

It was mostly Matt saying stuff to Kev, like, ‘you can’t push me,’ and stuff like that.

So, that's correct, is it?---Yes.

Okay. And in your – your interview with the police officer, you said that you could – that shortly before the shot that you heard, you could hear:

Like, grunting, and like, feet sort of shuffling against the concrete.

And you described it as:

A mix between scuffling and stomping, and sort of, like, grunting.

Now, you were asked by the police in the interviews, which were obviously closer in time, if you could give any better description of that sound that you heard. I’m just wanting to check that – you’ve had obviously time to think about, but obviously time has also gone by. I’m just wanting to check, is there any better description, or is that description the best that that you can recall?---Well, like, the grunts of somebody fighting.”^[31] (emphasis added)

28. [28]
    Doctor Nadine Forde is a forensic pathologist.  She conducted a post mortem examination of the deceased.  She opined that the cause of death were wounds caused by a single bullet.  That bullet entered the deceased’s left arm.  After exiting the inside of the left arm, the bullet entered the deceased’s chest passing between his sixth and seventh ribs, then through the left lung, heart, right lung, diaphragm and liver before lodging in the soft tissue outside the sixth and seventh ribs on the right side of his chest.  The path of the bullet was basically horizontal.^[32]
29. [29]
    Of some significance to the appellant was this evidence in cross-examination:

“You cannot, as a pathologist, form any reliable view as to the way in which the deceased was standing, or sitting, or positioned or what action he was engaged in at the time he received the injury, can you?---No. I absolutely cannot.

So for all you know, to take that a step further, the deceased could have been looking straight ahead and the projectile could have been discharged off to his left?---Yes.

Then again, for all you know, as a pathologist, the deceased could be turned side on to the – he could have turned side on and the projectile could have been fired from that way into him, couldn’t it?---In terms of – I guess that’s really the same position - - -

Yes?--- - - - of where the projectile’s come from, isn’t it?

It probably is, isn’t it?---Yes.

So it just is, perhaps, taking it – it’s labouring the obvious, perhaps, that I shouldn’t have done, which is you just don’t know what stance, physically, he was adopting at the time he was – he incurred the injury, beyond where the upper arm was?---That’s right.

Yes?---Another example might be whether he was standing or kneeling. I – I couldn’t - - -

Yes?--- - - - say what level he was at.”^[33]

30. [30]
    Sergeant Ian Bruce is a police officer and a ballistics expert.  He gave evidence that when a firearm is fired it discharges both lead vapours and nitrates.  These substances may be found on the target depending upon the distance between the target and the rifle at the time the rifle is fired.  He opined:

“So I undertook a series of testing and what I found out, using the exhibit firearm and similar ammunition that was used in this matter, I found out that the vaporous lead that we test or, it would be present at 50 centimetres, but at 75 centimetres, it would not be detected. So the vaporous lead would drop off – would not – would fail to reach the target somewhere between 50 centimetres and 75 centimetres. The other chemical test I did was for the nitrites, which are from the powder. And my conclusion from that testing was that the nitrites would drop off somewhere between 75 centimetres and 100 centimetres. So somewhere between 75 centimetres and l00 centimetres – because I did my testing in 25 centimetre distances –somewhere, the nitrites weren’t reaching the target. So to sum that up, the results of that testing was that under ideal circumstances, the muzzle of the gun would be in excess of 75 centimetres from the target at the time of – at the time of the incident.”^[34] (emphasis added)

31. [31]
    There was no evidence led as to the meaning of “ideal circumstances” and no cross-examination on that point.
32. [32]
    Sergeant Bruce also performed an examination of the firearm’s firing mechanism.  He said that the rifle had a magazine capable of holding seven cartridges.  Once the magazine is in position, the bolt handle must be lifted up and pulled back.  When the bolt is then pushed forward, the top cartridge sitting in the magazine is forced into the chamber.  In order for the rifle to be readied for firing, the bolt handle must be turned down and the safety switch pushed forward.^[35]
33. [33]
    Sergeant Bruce tested the mechanisms and found no faults.  His examination revealed that the trigger required 1.3 kilograms of pressure to cause the bullet to discharge.  He opined that the rifle was incapable of being discharged accidentally.  Sergeant Bruce measured the rifle at roughly a metre in length.^[36]
34. [34]
    The appellant gave evidence.  He said that he came to the door, looked into the house and saw Ms Binns and the deceased arguing.  In evidence in chief he said this:

“What were you thinking at the time you came to the door?---Well, I knew they were arguing about something. I just stood there until they seen me, and then when they seen me, they just crapped themselves and didn’t know what to do.

Well, tell us – rather than, I suppose, make a compendious description – tell us what you saw either of them say or do when they became aware you were in the doorway?---When they became aware, they just stared at me, and Matthew said, ‘What the fucking hell are you doing with that, old fella?’

Did you reply?---No, I didn’t.

What happened next?---Next, it was very quick, but Matthew came towards me and I don’t know whether he grabbed the barrel of the gun or not, but next thing, I heard the gun go off. And that’s all I can tell you.

Well, when he came towards you, in what manner did he move toward you? Did he – can you describe that?---Well, he moved fast towards me.

Do you recall now how close he got to you?---Probably a metre.

Are you – now, just tell me again what your recollection is. You said he turned and he moved towards you. What is your recollection, your actual recollection, not what you are working out afterwards? What is your recollection---Well, he turned and come towards me and he grabbed the barrel – whether he grabbed the barrel or hit it, but it went towards the floor and next – and the gun went off. But the next time I’ve seen the rifle, it was laying on the floor, and he was walking around the table holding his shoulder.

Now, did you intend to discharge the weapon?---I didn’t intend to discharge the weapon unless he did something to me first.

Did you do the act which caused the weapon to discharge, or can’t you say?---Well, I possibly did. I don’t know. If you get something knocked out of your hand, you’ve got no control over it, have you? Like, if you’re holding a gun and someone hits the barrel, you’re naturally going to put pressure on the – wherever you’re holding it.

Well, when you went to the door, you had the weapon pointing down, didn’t you?---That’s right.”^[37] (emphasis added)

35. [35]
    The appellant was reminded of a statement he had made to Detective Harvey, a police officer who investigated the killing, and then gave evidence:

“Now, you heard this morning a tape recorded conversation that was played between – of a conversation between yourself and Detective Harvey?---Yeah.

And you – did you hear, in that conversation, these words:

I didn’t mean to kill the cunt, but I shoulda. I was just gonna shoot him in the leg, or something.

?---Yeah, that’s right.

Right. Well, can you explain to me what it was that you were saying there, in terms of shooting somebody in the leg. What had been in contemplation there?---Well, better than shooting him through the head. You’d kill him, wouldn’t you.

Yes. But in what circumstance were you alluding to when you said to Sergeant Harvey:

I was just going to shoot him in the leg.

?---Well, it’d slow him down if he was coming towards me, or whatever. But he didn’t do that anyway.

Sorry?---He did, but he didn’t have anything in his hand, or – I don’t know if he had anything or not.

Okay. So you don’t know if he had anything in his hands when he came towards you?---He did have a bottle of beer. I know that much.

Well, do you know that because you’ve heard evidence of it, or did you see it - - -?---No, I’ve seen it.

Hey?---I’ve seen it.”^[38] (emphasis added)

36. [36]
    The appellant’s evidence continued.  In particular:

“Now, Mr Hanley, yesterday evening or afternoon, we had got to a point where you had told us about Matthew Morcus coming towards you - - -?---Yes.

- - - and the gun discharging?---Yes.

I wanted to ask you this. What were you thinking at the time that Matthew moved towards you?---I was actually thinking he was going to attack me.

And what was the basis for your thought that he was going to attack you?---Well, just that he had a bottle in his hand, and he had that look on his face.

And did you give any consideration to what type of attack you were anticipating?---Well, he could’ve hit me in the face with the bottle, something like that.”^[39] (emphasis added)

37. [37]
    Under cross-examination, the appellant said that he remained at the doorway for about 30 seconds keeping the deceased and Ms Binns under observation.  He said:

“Well, if you were so concerned about the safety of somebody inside and you were going there in order to in some way act on that concern, why would you just turn up and not even say anything?---I don’t know. I knew if I stood there and I seen something happening, I probably would have just dropped the rifle and dragged Matthew. I didn’t go there to kill anyone.

Well, you had already decided before you even got there that you’d shoot him if you thought it was necessary?---No, I didn’t.

So if I understand what you’ve just said to me in your evidence, that if you saw Matthew doing something, you would have just dropped the rifle and grabbed him?---Yes.”^[40]

38. [38]
    The appellant gave evidence under cross-examination about seeing the deceased, who noticed the appellant at the doorway and then walked towards him.  He said:

“Well, he’s walking towards you, you say a bit more than a walking pace?---Yeah, but he didn’t hit me.

No?---No.

Didn’t do anything to you, did he?---And you don’t hit anyone unless they hit you first. That’s the way I work, anyhow.

Well, but he didn’t do anything to you, did he?---No.

Didn’t touch you in any way, did he, that night?---Well, he must have touched – he mightn’t have touched me, but he touched the rifle because the rifle landed on the ground.

Right. Well, so you say that he came towards you. And what happened then, just to be clear? He’s coming towards you?---Yeah.

You’ve got the rifle, according to you, holding it around the trigger guard area with the barrel pointed downwards?---Yeah.

Right. Well, tell us what happened then?---Well, it was that quick, I don’t know what happened.”^[41]

39. [39]
    The appellant gave evidence about the rifle.  His evidence as to what was required to load the weapon and ready it for firing accorded with the evidence of Sergeant Bruce.^[42]
40. [40]
    In his evidence in chief, the appellant said that when he approached Ms Binns’ house he cocked the rifle with a live round in the chamber.^[43]  He explained that he did this because he would not have time to cock the rifle and presumably use it in self-defence in the event that the deceased produced a gun.^[44]
41. [41]
    In cross-examination, the appellant denied that he, at any time, readied the rifle for firing.  He said that he placed a bullet in the chamber and pushed the bolt forward but did not lock it down,^[45] and did not switch the safety off.^[46]
42. [42]
    Given Sergeant Bruce’s unchallenged evidence as to the workings of the rifle, the appellant’s evidence provides no sensible explanation as to how the rifle became cocked and the safety switch turned off.  This exchange occurred in cross-examination of the appellant:

“And that you don’t know what happened with the gun, but it ended upon the floor?---That’s right.

You don’t know whether you dropped it. Is that right?---I think it was knocked out of my hand, I said.

And, what, it just went off when it landed on the ground?---It could’ve. You don’t know what [indistinct] if it landed on the ground, it could’ve – that bit that was 45 degrees, could’ve landed on that and - - -

Knocked the safety off?---Knocked the safety off.

Bounced up so it shot him through the side?---There you go.”^[47]

Legal principles

43. [43]
    In the context of the present case, the elements of the offence of murder^[48] were:

    1. (a)
       the deceased is dead;
    2. (b)
       the appellant caused the deceased’s death;
    3. (c)
       the appellant did so unlawfully; and
    4. (d)
       at the time of the act which caused the death, the appellant intended to kill the deceased or do him grievous bodily harm.
44. [44]
    Here, there was no doubt about element one.  As to the second element (causation), his Honour left the case to the jury in this way:

“Now, because of the way in which the Crown case has been put and the evidence in this trial, unless you are satisfied beyond reasonable doubt that Mr Hanley deliberately pulled the trigger and thereby caused the rifle to fire the shot that killed Mr Morcus, you could not be satisfied that he caused Mr Morcus’s death and accordingly, you must find him not guilty of murder.”^[49]

45. [45]
    As later explained, the trial judge also left the exculpation created by s 23(1)(a) of the Code for the jury’s consideration.  For reasons which follow, it is necessary to consider s 23(1)(a) in order to understand his Honour’s direction on causation.
46. [46]
    Section 23(1)(a) exculpates a person from criminal liability from an unwilled act or from an event which is neither a foreseen nor foreseeable consequence of an act.^[50]  Section 23 provides:

“23 Intention—motive

3. (1)
   Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

1. (a)
   an act or omission that occurs independently of the exercise of the person’s will; or

2. (b)
   an event that—

1. (i)
   the person does not intend or foresee as a possible consequence; and

2. (ii)
   an ordinary person would not reasonably foresee as a possible consequence.”

47. [47]
    A decade before the High Court decided Kaporonovski v The Queen,^[51] Philp J, in R v Knutsen,^[52] described the effect of the two subsections of s 23 in these terms: “s 23 implies that a person is criminally responsible for his willed act^[53] and for the foreseeable consequences of that act^[54] − the non-accidental events of that act”.^[55]  In later cases, including Kaporonovski, the distinction between the person’s “act” and the “event”, which occurred as a consequence of the act, has been crucial to the application of s 23 of the Code.
48. [48]
    The relevant “act” to which s 23(a)(i) applies is the physical act,^[56] which here is the squeezing of the trigger of the rifle which caused the event which is the death.^[57]
49. [49]
    The appellant, at least in one part of his evidence, accepted that he may have squeezed the trigger.^[58]  Given the unchallenged evidence of Sergeant Bruce, it was all but inevitable that the jury would find that pulling the trigger caused the rifle to discharge, which in turn caused the bullet to enter the deceased and thereby kill him.  The issue was not whether the appellant caused the death, but whether the squeezing of the trigger was an act which occurred independently of the exercise of the appellant’s will.  His Honour directed the jury in that way relevantly to s 23.  The direction on causation may have been overly generous to the appellant.  It was not suggested that this caused any unfairness to the appellant.
50. [50]
    To “unlawfully kill a person” is to do an act which kills where the act is not authorised, justified or excused by law.^[59]  Here, five defences were left for the jury’s consideration:

    1. (a)
       self-defence against an unprovoked assault;^[60]
    2. (b)
       self-defence against a provoked assault;^[61]
    3. (c)
       defence of a dwelling;^[62]
    4. (d)
       the act was unwilled;^[63] and
    5. (e)
       compulsion.^[64]
51. [51]
    It was incumbent upon the Crown to disprove each of the possible defences.  Each defence is made up of elements so if the Crown disproves beyond reasonable doubt one or more of the elements, then the defence has been negatived.
52. [52]
    In relation to self-defence against an unprovoked assault, ss 271(1) and (2) of the Code provide as follows:

“271 Self-defence against unprovoked assault

3. (1)
   When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

3. (2)
   If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

53. [53]
    The distinction between the defence created by s 271(1) and that created by s 271(2) is as to the nature of the assault to which defence is being made.  Lethal force in defence is only justified where the assault to which defence is being made “is such as to cause reasonable apprehension of death or grievous bodily harm”.
54. [54]
    The shooting is force “likely to cause death or grievous bodily harm”, so the trial judge left for the jury’s consideration the defence created by s 271(2) but not s 271(1).  In context of the present case, the Crown had to prove any one or more of the following beyond reasonable doubt:

    1. (a)
       that the appellant was not unlawfully assaulted by the deceased; or
    2. (b)
       that the appellant gave provocation to the deceased for the assault; or
    3. (c)
       that the nature of the assault was not such as to cause reasonable apprehension of death or grievous bodily harm; or
    4. (d)
       that the appellant did not actually believe on reasonable grounds that he could not otherwise save himself from death or grievous bodily harm.
55. [55]
    As to self-defence against a provoked assault, s 272(1) provides:

“272 Self-defence against provoked assault

3. (1)
   When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.”

56. [56]
    In order to exclude that defence, the Crown had to satisfy the jury beyond reasonable doubt of any one or more of the following:

    1. (a)
       the assault by the deceased was not of such violence as to cause reasonable apprehension of death or grievous bodily harm; or
    2. (b)
       that the assault did not induce the appellant to believe, on reasonable grounds, that it was necessary for his own preservation from death or grievous bodily harm to use the force used in self-defence; or
    3. (c)
       that the force used was more than was reasonably necessary to save the appellant from death or grievous bodily harm; or
    4. (d)
       that the appellant first began the initial assault with intent to kill or to grievous bodily harm to some person.
57. [57]
    Section 267(1) of the Code, creates the defence of defence of dwelling and that is in these terms:

“267 Defence of dwelling

It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—

1. (a)
   the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and

2. (b)
   it is necessary to use that force.”

58. [58]
    To exclude that defence, the Crown had to prove beyond reasonable doubt at least one of the following:

    1. (a)
       that Ms Binns was not in peaceable possession of her home; or
    2. (b)
       that the appellant was not assisting Ms Binns or acting with her authority; or
    3. (c)
       that the appellant did not believe on reasonable grounds that the deceased was attempting to remain in the home with intent to commit an indictable offence in the dwelling; or
    4. (d)
       that the appellant did not believe on reasonable grounds that it was necessary to use the force that he did.
59. [59]
    As already explained, s 23(1)(a) of the Code excuses the consequences of an unwilled act.  Here, the relevant act was the pulling of the trigger of the rifle which was in a state capable of being fired.  In order to negative s 23(1)(a), the Crown had to prove to the jury beyond reasonable doubt that the appellant wilfully pulled the trigger.
60. [60]
    Compulsion is not a defence to murder but it is a defence to manslaughter.^[65]  Section 31 provides as follows:

“31 Justification and excuse—compulsion

3. (1)
   A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—

1. (a)
   in execution of the law;

2. (b)
   in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful;

3. (c)
   when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence;

4. (d)
   when—

1. (i)
   the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

2. (ii)
   the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and

3. (iii)
   doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.

3. (2)
   However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.

3. (3)
   Whether an order is or is not manifestly unlawful is a question of law.”

61. [61]
    In order for the Crown to negative compulsion, it had to prove one of the following beyond reasonable doubt:

    1. (a)
       that violence was not threatened to the appellant or Ms Binns by the deceased; or
    2. (b)
       that the act done by the appellant was not reasonably necessary in order to resist the threatened violence; or
    3. (c)
       that the appellant had committed murder.^[66]
62. [62]
    The fourth element of the offence of murder namely intention to kill or do grievous bodily harm was in dispute and manslaughter was left as an alternative verdict.  If intent was not proved then compulsion came into play.^[67]

It was open to the jury to convict the appellant

63. [63]
    The case against the appellant was a strong one.  He attended at Ms Binns’ house where he knew the deceased was.  He was armed with a loaded firearm.  Despite the evidence of the appellant to the contrary, it was open to the jury to accept the evidence from Sergeant Bruce and conclude that the safety switch on the rifle was disengaged.
64. [64]
    During the hearing of the appeal, it was conceded that if it was open to the jury to accept Ms Binns’ version that the appellant walked into the house, raised the weapon and fired at the deceased, then it was open to then convict the appellant of murder.^[68]
65. [65]
    That concession was properly made.  If Ms Binns’ version was accepted, then it was open for the jury to find, at least:

    1. (a)
       that there was no reasonable apprehension by the appellant of death or grievous bodily harm to him;^[69]
    2. (b)
       that the shooting was not necessary to resist any violence;^[70]
    3. (c)
       that the appellant was not acting in defence of Ms Binns’ dwelling;^[71]
    4. (d)
       that the firing of the gun was a deliberate act;^[72] and
    5. (e)
       that the firing of the gun caused the death of the deceased.
66. [66]
    That would only leave the question of intent.  Evidence of a deliberate discharge of a firearm at close quarters to the deceased where the bullet entered his chest is evidence upon which the jury could have concluded there was intent at least to do grievous bodily harm.
67. [67]
    Ms Binns’ evidence was open to criticism.  She had made statements which were inconsistent with her evidence at trial.  Her explanations for those statements, namely that she had been suborned by Ms Bruin, were open to further criticism.  Her evidence might, depending upon what view was taken, also be contradicted by Beyana’s evidence that she had heard some type of struggle or altercation.  I shall return shortly to the evidence of a struggle.
68. [68]
    However, Ms Binns’ evidence was substantially corroborated by independent evidence.  Sergeant Bruce’s opinion that the rifle’s mechanism was such that it could only be fired by deliberate action was not challenged.  His evidence was that the end of the barrel of the gun had to be at least 75 cm from the deceased when fired.  He qualified that opinion to the extent that his tests were done “in ideal circumstances”.  However, the jury could at least be satisfied that there was some distance between the end of the barrel and the deceased at the time of discharge.
69. [69]
    Doctor Forde’s evidence also supported Ms Binns’ version.  The bullet entered the deceased’s left arm and then passed basically horizontally through his chest.  Doctor Forde correctly conceded that she could not give an opinion as to the respective positions of the deceased and appellant at the time the gun was fired.  Such a determination is beyond the science of forensic pathology.
70. [70]
    The jury, on assessing the facts in the case, had their own function to play.  There was evidence from which they could conclude that the two men were both standing at the time of discharge.  That evidence came from Ms Binns, and from the appellant himself.  There is no evidence of either man falling.  Ms Binns does not say either fell, nor does Ms Bruin or the appellant.  Ms Binns said that the gun was raised and pointed at the deceased.  If fired in that position the trajectory through the deceased would be horizontal.
71. [71]
    The only evidence which directly contradicts the notion of the gun being fired after having been raised horizontally and pointed at the deceased is the evidence of the appellant.  As already observed, the appellant said that the gun was grabbed or knocked causing it to drop on the floor and discharge.  An obvious obstacle to that version was the unchallenged evidence of Sergeant Bruce that the gun would not accidentally discharge.  Assuming though that Sergeant Bruce’s evidence was or could be rejected, the explanation for the horizontal trajectory through the arm and chest of the deceased is not obvious.  If the gun was dropped to the floor, then it fell to a position below the chest of the deceased.  To discharge a bullet which entered the deceased’s chest, the barrel must logically having been pointing vertically.  For the bullet to then travel horizontally through the deceased’s chest, he must have somehow been bent over the muzzle of the rifle.  The appellant’s version is highly unlikely and it was open to the jury to reject it.
72. [72]
    On appeal, the appellant relied heavily on evidence that there was a struggle between the appellant and the deceased.  Any struggle was relevant, at least, to self-defence, the wilfulness or otherwise of the discharge of the firearm, intention and compulsion.  The evidence, it was submitted, contradicted Ms Binns’ evidence.
73. [73]
    Beyana, in her recorded interview, said she heard the appellant and the deceased fighting.  She heard them arguing and then “scuffling and stomping”.  None of the other witnesses suggest that there was any extended interaction between the people in Ms Binns’ house before the shooting although there is mention of some scuffle:

    1. (a)
       Ms Binns initially told police that the appellant entered her house, she looked away and heard a scuffle and the gun shot.
    2. (b)
       Ms Binns’ evidence at the trial was that the appellant entered her house, said to the deceased “Do you wanna go now?” and then pulled the trigger of the rifle.
    3. (c)
       Ms Bruin saw the appellant enter the house, she heard the appellant say “leave her alone”, the deceased said “Give it to me, give it to me”, a “scuffling noise … like new leather shoes squeaking and rubber soles on concrete” and the discharge of the rifle.
    4. (d)
       The appellant said he entered the house, the deceased said “What the fucking hell are you doing with that old fella”, and rushed towards him.  He said that the deceased only got within a metre of him before the gun discharged.
74. [74]
    Significantly, Beyana, in her pre-recorded evidence, said she could be confused in her recollections of what occurred at the house and what occurred at the bowls club.  It was open to the jury to find beyond reasonable doubt that there was no struggle.
75. [75]
    It was open to the jury to accept all or part of Ms Binns’ evidence.  Even if they accepted none of it, there was still a compelling case to support a finding of a deliberate shooting.  In particular:

    1. (a)
       the appellant attended Ms Binns’ house with a loaded rifle;
    2. (b)
       he knew the deceased was at the house;
    3. (c)
       he had a violent altercation with the deceased earlier in the evening at the bowls club;
    4. (d)
       accepting the evidence of Sergeant Bruce, the rifle was not only loaded but cocked, with the safety switch off when the appellant confronted the deceased;
    5. (e)
       the absence of any sensible hypothesis supporting the accidental discharge of the gun if it was either not fully cocked or the safety switch was on;
    6. (f)
       the evidence of Dr Forde that the bullet passed horizontally through the deceased;
    7. (g)
       the absence of any sensible hypothesis explaining the trajectory of the bullet other than both men were standing at the time the gun was discharged; and
    8. (h)
       the evidence of Sergeant Bruce from which an inference can be drawn that the two men were standing well apart when the gun was fired.
76. [76]
    If the jury found, as it was open to them to do so, that the appellant deliberately fired a bullet at close range into the upper torso of the deceased, it was clearly open to find that he intended to kill the deceased, or at least do him grievous bodily harm.
77. [77]
    It was therefore open to the jury to find beyond reasonable doubt that:

    1. (a)
       the appellant deliberately shot the deceased;
    2. (b)
       he caused his death; and
    3. (c)
       he intended to kill or do grievous bodily harm to the deceased at the time he pulled the trigger.
78. [78]
    If it was open for the jury to find, as in my view it was, a deliberate discharge of the firearm, then the defence, under s 23(1)(a) of the Code, is also excluded.  That leaves self-defence, defence of a dwelling and compulsion.
79. [79]
    While it is true that the Crown must negative self-defence, there must be some evidence to raise a reasonable doubt that the appellant acted in self-defence.  The appellant said that he feared that the deceased might attack him with the bottle that was in his hand.  He did not say that he acted on that fear.  He said that the gun was discharged accidentally, not in self-defence.  The essence of self-defence is the belief of an accused that the acts done in self-defence were necessary to preserve the accused.^[73]  While the onus to disprove self-defence always remains on the Crown, the failure of the appellant to swear that he acted in self-defence upon such a belief is relevant to the jury’s consideration.
80. [80]
    Similarly, the appellant did not say he feared grievous bodily harm or death.  He did not say that he believed that he could not save himself from death or grievous bodily harm other than by shooting the deceased.  At its highest, the appellant said that he feared the deceased might hit him with a Strongbow cider bottle.
81. [81]
    It was open to the jury to find each or any of:

    1. (a)
       the appellant did not act in self-defence;
    2. (b)
       he did not fear death or grievous bodily harm;
    3. (c)
       he did not believe that he could not save himself except by shooting the deceased.
82. [82]
    In the course of the appeal, Mr Edwards of counsel for the appellant indicated that he did not press defence of a dwelling strongly.  That was an appropriate approach.  The appellant gave evidence that he stood at the door of Ms Binns’ house observing Ms Binns and the deceased.  There was no violence between them.  It was clear that it was open to the jury to find that it was not necessary for the appellant to use the force he did to defend Ms Binns’ home.
83. [83]
    The jury having found intention to kill, and in my view that finding being open to them, compulsion does not arise.
84. [84]
    In my view, on the evidence before them, it was open to the jury to find beyond reasonable doubt that the appellant unlawfully killed the deceased and at the time he did so he intended, at least, to do the deceased grievous bodily harm.
85. [85]
    It was open to the jury to convict the appellant and the first two grounds of appeal are not made out.

Ground three

86. [86]
    Ground three concerns the evidence of Detective Sergeant Colin Frederick Harvey.  He was one of several police officers involved in the investigation of the death.
87. [87]
    Detective Sergeant Harvey was detailed to the scene of the shooting shortly after it was reported to police.  When he arrived, the appellant was sitting in the rear of a police car.  He had a conversation with the appellant.  That was recorded and became exhibit 18 in the trial.^[74]  His evidence then continued:

“Now, after that conversation with Mr Hanley, did you initially organise a search for the rifle?---Yes.

And was that successful at that time?---No.

You then had a further conversation with Mr Hanley in relation to the location of the rifle?---That’s correct.

And that conversation was also recorded?---Yes.

And I will just ask you to just have a look at this disk, that contains a copy of the recording from that conversation that you had with Mr Hanley?---It’s labelled indicating it does, yes.”^[75]

88. [88]
    The recording was tendered and became exhibit 19.  That was played to the jury who were also provided with a transcript.  A conventional and appropriate warning was given to the jury as to the use of the transcript.^[76]
89. [89]
    The critical exchanges between Detective Sergeant Harvey and the appellant as recorded in exhibit 19 are as follows:

“SGT HARVEY:  … Kev, what was that?  You, you didn’t put it in that garden?

HANLEY:  Nuh.  It was there but I, I went that stupid driveway, I walked over into the scrub about half a K and threw it in the scrub, yeah, just down there. …”^[77]

And later:

“SGT HARVEY:  Yeah.  And, but you walked out that way--

HANLEY:  Yeah.

SGT HARVEY:  To see Steve.

HANLEY:  ‘Cause I went down to meet the analyst.

SGT HARVEY:  Yep. …”^[78]

And later:

“SGT HARVEY:  So about half a K in the other block?

HANLEY:  Ah, I don’t, yeah, yeah.

SGT HARVEY:  Something like that.

HANDLEY:  yeah.

SGT HARVEY:  Is it thrown or placed?

HANLEY:  Ah, it could have been placed or thrown.  I don’t know.  You won’t find it.

SGT HARVEY:  Won’t?

HANLEY:  Nuh.  You can look for the rest of your fucking life and you will not find it.  Alright?  So that solves that until you find, if, if they it I’ll congratulate.”^[79]

90. [90]
    After defence counsel had cross-examined Detective Sergeant Harvey, the Crown Prosecutor indicated to the trial judge that a matter of law had arisen.  The jury retired.^[80]  There is no need to consider the matter which was raised by the Crown Prosecutor.  However, while the jury was absent, the trial judge raised issues about the relevance of the exhibit 19.  This exchange occurred:

“HIS HONOUR: Can I ask you in relation to the evidence about this rifle and what Mr Hanley said?

MR GREEN: Yes.

HIS HONOUR: Does the Crown intend to rely upon that?

MR GREEN: No. Not to – not as - - -

HIS HONOUR: A lie.

MR GREEN: No. I - - -

HIS HONOUR: What’s its relevance then?

MR GREEN: It was as – well, it was really - - -

HIS HONOUR: Because it has no probative value in terms of the offence charged.

MR GREEN: Yes.

HIS HONOUR: He admits firing the rifle. He admits all sorts of particulars about it. He admits shooting the deceased. I just don’t understand the relevance of this evidence.

MR GREEN: Yes.

HIS HONOUR: It seems pretty clearly enough that – well, not clearly enough but I suspect it was an unregistered firearm and he doesn’t want to reveal that.

MR GREEN: Yes.

HIS HONOUR: It’s a classic case where someone tells a lie, not out of consciousness of guilty but to protect, perhaps, others - - -

MR.GREEN: Yes.

HIS HONOUR: - - - from a regulatory offence, or it may not be a regulatory offence - - -

MR GREEN: And - - -

HIS HONOUR: - - - but an offence under the Weapons Act.

MR GREEN: Yes.

HIS HONOUR: That seems, to me, to be what’s going on here.

MR GREEN: Yes.

HIS HONOUR: So - - -

MR GREEN: I - - -

HIS HONOUR: - - - I just wonder why – how that evidence is at all relevant in proof of the Crown case.

MR GREEN: No, I accept that. There had been an earlier discussion and I had, in fact, conceded to my learned friend that it wasn’t one where the Crown would seek any positive direction on lies. There were three conversations but I had agreed not to lead the third and, on reflection, I probably should have not led that one.

HIS HONOUR: Well, not led any of the evidence around the rifle.

MR GREEN: Of the - - -

HIS HONOUR: In terms of what Mr Hanley says.

MR GREEN: No, no. That’s correct.

HIS HONOUR: So what am I to do with that evidence? Tell the jury to ignore it?

MR GREEN: To the extent that there’s any risk of any prejudice to the defendant, then yes.

HIS HONOUR: Well, how can I say there isn’t?

MR GREEN: No, well, I - - -

HIS HONOUR: The Crown’s led a bracket of evidence.

MR GREEN: Yes.

HIS HONOUR: And that it has no probative value in proof of the offence charged, so we will discuss all this later but my present intention would be that I would feel duty bound to direct them to ignore it.

MR GREEN: I wouldn’t seek to dissuade your Honour.

HIS HONOUR: All right. There’s no more evidence in that category is there?

MR GREEN: No.

HIS HONOUR: Okay. Can we have the jury back, please?”^[81]

91. [91]
    There is no doubt that the appellant’s statement to police that the rifle had been thrown away was a lie.  The evidence proving it as a lie was:

    1. (a)
       the rifle was inside the deceased’s home leaning up against a wall immediately after the shooting;^[82]
    2. (b)
       the appellant gave evidence at the trial that he picked the rifle up and leant it up against a tree at the deceased’s residence;^[83] and
    3. (c)
       police located the rifle at the deceased’s residence.^[84]
92. [92]
    Detective Sergeant Harvey was excused and other witnesses were called and gave evidence.  The jury retired just before lunch and in the absence of the jury the Crown Prosecutor raised the question of exhibit 19.  This exchange occurred:

“MR GREEN: There is, perhaps, one thing I can raise in relation to that second recording. That it had been – there had been some discussion about it and it may offer some explanation as to some relevance to the benefit of the defendant, and that was simply that in that recording he said that he had gone to wait for the ambulance. That that explained the reason he was outside the property, as opposed to anyone suggestion that he was running away or fleeing the scene. I don’t know whether there was any - - -

HIS HONOUR: The evidence is already – that’s probably a matter for Mr Copley, but the evidence is already to the effect that he waved at the police officer as he drove up. But - - -

MR GREEN: Yes. But that seemed to me to be the only possible relevance and I certainly accept everything your Honour said about that.

HIS HONOUR: Yes. So what do you want to do about that or what does Mr Copley want to do?

MR COPLEY: Well, there is already evidence that he was trying to attract the attention of what he, at least, must have thought was the ambulance. So a direction to the jury to disregard the content of that recording would not be harmful to the defence at all.

HIS HONOUR: The whole recording?

MR COPLEY: Well - - -

HIS HONOUR: I will have to go back. I mean, both of you are well ahead of schedule by my – according to the time estimates I was provided with. You’re about three days ahead of schedule, but maybe I’m exaggerating a little. But you’ve conducted the trial with such efficiency that we’re well ahead of where I thought we would be. So I would have to review what’s in the second recording.

MR GREEN: Yes.

MR COPLEY: Well – sorry.

MR GREEN: I was going to say it’s perhaps something that we can both look at in the meantime as well and came to an agreed position in relation to that.”^[85]

93. [93]
    On Friday, 23 November 2018, the defence case was closed and both counsel addressed the jury.  Neither barrister mentioned exhibit 19 or the conversation there recorded.  After final addresses, the judge provided the two barristers with documents which his Honour proposed to deliver to the jury during the summing up and invited counsel to send to his Honour’s associate over the weekend any submissions concerning those documents.
94. [94]
    Nothing was received by his Honour’s associate from counsel over the weekend and on Monday, 26 November 2018, his Honour summed up the case to the jury.  Before doing so, and in the jury’s absence, this exchange occurred:

“HIS HONOUR: I record that nothing was received from either counsel over the weekend regarding my request for any suggested directions. And I now enquire as to the defence position regarding exhibit 19, Mr Copley. The reason I’m enquiring is because it’s been left up in the air. There was some talk of there being a benefit in exhibit 19, because it contains an acknowledgement or contains some evidence that your client waited for emergency services to turn up. There is other evidence to that effect and you’ve addressed on it. My suggestion was that I direct the jury to ignore that recording. Is that what you want me to do?

MR COPLEY: Yes, thank you, your Honour.

HIS HONOUR: In those circumstances, is it appropriate that exhibit 19 go to the jury?

MR COPLEY: No, it shouldn’t go to the jury.”^[86]

95. [95]
    Early in the summing-up, when informing the jury that the evidence in the case consisted of the sworn evidence of the witnesses and the exhibits, his Honour directed them:

“The evidence in the case is also comprised of the various other exhibits that were tendered during the trial, such as photographs, maps, diagrams and other recordings that were admitted as exhibits. All save for one of those exhibits, will be with you in the jury room when you are deliberating, together with equipment to view and listen to those recordings.

The one exception is this: exhibit 19. It contains evidence that is entirely irrelevant to your task. It will not for that reason be with you in the jury room. Just to remind you, it is a recording of a two-minute conversation between Sergeant Harvey and Mr Hanley at 12.55 am the next morning, that is, 14 October.  In that conversation, Mr Hanley said he had thrown the rifle in the scrub and you may have recollection of it, so that is the conversation I am referring to.

Now, what Mr Hanley said about disposal of the rifle has nothing at all to do with this trial, and to the extent that you recall that conversation, you are to ignore it. As it is, there is no – sorry – there is evidence that he did not have a licence to possess a weapon and so you might think he had every reason for him – there was every reason for him not to reveal the whereabouts of the rifle. You see possession of a weapon without a licence is an offence but the fact he was unlicensed is neither here nor there in this trial. It proves nothing regarding any issue in the trial. The fact that he was not forthcoming when he was asked about this by Sergeant Harvey also proves nothing regarding any issue in this trial. So for all of those reasons, exhibit 19 will not be with you because that evidence or that conversation is completely irrelevant.”^[87]

96. [96]
    There was no application for any redirection in relation to that direction to the jury.
97. [97]
    The submission on appeal is that, notwithstanding the trial judge’s directions, a miscarriage of justice was occasioned by the fact that the jury heard exhibit 19.  It was submitted:

    1. (a)
       the conversation showed a lie by the appellant about the rifle;
    2. (b)
       by the time the jury heard the appellant’s evidence;

       1. they had heard exhibit 19; and
       2. no direction had been given to them to ignore it; and
    3. (c)
       “therefore, their assessment of the appellant’s credit was tainted at the outset by the knowledge that the appellant lied about a key piece of the evidence and they would be open to drawing their own inferences as to the reasons behind that”.^[88]
98. [98]
    The appellant accepted, and acknowledged in the way ground three was drawn, that he must show that the jury’s exposure to exhibit 19 caused “a miscarriage of justice”.^[89]  It was submitted that occurred because:

    1. (a)
       the conversation recorded in exhibit 19 damaged the appellant’s credit;^[90] and
    2. (b)
       there was a danger that improper inferences could be drawn, namely that the lie had been told from a consciousness of guilt.^[91]
99. [99]
    There was no danger of miscarriage if the jury faithfully followed his Honour’s direction to disregard the evidence.  Not only did his Honour direct the jury in that way, but his Honour also explained to the jury why it was logical for them to ignore the conversation.  His Honour explained that any lie may have been motivated by the fact that the gun was unlicensed.
100. [100]
     No complaint was made about the direction.  There was no application to discharge the jury by reason of the fact that exhibit 19 was played to them.  Both counsel urged the trial judge to direct the jury to ignore exhibit 19 which his Honour did.
101. [101]
     It is assumed that juries faithfully follow directions of the trial judge.^[92]  Routinely, juries are directed as to the ways in which they may or may not use evidence of post-offence conduct.  Here, they were directed to ignore it.  There is nothing to suggest that the direction was not followed.  On the assumption that it was followed, no miscarriage is demonstrated.  Ground three is not made out.
102. [102]
     I would dismiss the appeal.