R v O'Keefe[2023] QCA 116

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA: On 2 August 2021, after an eight day trial in the Supreme Court at Townsville before North J, the appellant was convicted of the following offences, namely, that on 26 July 2016 at Townsville:

   1. (a)
      he attempted unlawfully to kill Brittny Ellen Speechly-Faulks (Count 1);
   2. (b)
      he entered the dwelling of Elizabeth Anne Kippin with intent to commit an indictable offence in the dwelling and the entry was by means of a break and the offence was committed in the night (Count 2);
   3. (c)
      he murdered Elizabeth Anne Kippin (Count 3);
   4. (d)
      he attempted unlawfully to kill Jason Robert Cox (Count 4);
   5. (e)
      he threatened violence to John Baptist Costanzo at night whilst armed with a fire hydrant lid (Count 5);
   6. (f)
      he wilfully and unlawfully damaged a number of windows (Count 6); and
   7. (g)
      he threatened violence to Daniel Wade Short at night whilst armed with a fence paling (Count 7).
2. [2]
   The appellant appeals against the convictions recorded in relation to Counts 2 and 3.  The sole ground of appeal is that the verdicts for Counts 2 and 3 were unsafe and unsatisfactory.  The appellant submits that, having regard to the evidence, the jury could not have been satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person, namely Brittny Ellen Speechly-Faulks, entered the dwelling of Elizabeth Anne Kippin (the deceased) and killed her.
3. [3]
   There were no eyewitnesses to the entering of the dwelling or the killing of the deceased.  The Crown case was circumstantial.  The appellant did not give or call any evidence.  Although the appellant does not seek to challenge the convictions in relation to Counts 1 and 4 to 7, the facts of this offending constitute part of the Crown’s circumstantial case.  It is therefore convenient to consider the evidence in relation to this offending before considering the evidence in relation to Counts 2 and 3.
4. [4]
   The issue raised by the ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code (Qld). As the High Court held in M v The Queen (1994) 181 CLR 487, that involves a determination as to whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty.”
5. [5]
   In R v Conn; R v Conn; Ex parte Attorney-General (Qld) [2017] QCA 220 Sofronoff P identified the following principles from M v The Queen at [24]:

“In M v The Queen the plurality emphasised the kind of case in which an appellate court might conclude that a reasonable jury ought to have entertained a doubt.  Their Honours said:

‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’”

(footnotes omitted)

6. [6]
   The relevant principles were identified by Fraser JA (with whom Gotterson and McMurdo JJA agreed), in R v Clapham [2017] QCA 99 at [4]:

“The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted. In considering this ground of appeal the ‘starting point ... is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses’, but:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’”

7. [7]
   Given that the present case is a circumstantial one, in order to apply the test in M v The Queen, each member of the Court is required to be independently satisfied, as the result of their own assessment of the whole of the evidence adduced at the trial, that the only rational inference available on that evidence was that it was the appellant who entered the house of the deceased and killed her.^[1]
8. [8]
   In considering a circumstantial case however, each member of the Court does not need to be concerned with mere conjecture.  As observed by McMeekin J (with whom Morrison and Philippides JJA agreed) in R v Sharma; R v Agrawal [2017] QCA 209 at [72]:

“The hypotheses that are of significance are those that are reasonable. An hypothesis that ignores the facts is not a reasonable one. The principles were usefully summarised by Brennan and Gaudron JJ in Knight v The King (1992) 175 CLR 495 at 509:

“In Barca v The Queen Gibbs, Stephen and Mason JJ said: ‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’ (Peacock v The King.) These principles are well settled in Australia.’”

(original emphasis, footnotes omitted)

9. [9]
   This principle was also considered by the High Court in R v Baden-Clay (2016) 258 CLR 308 at 324 [47]:

“For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

(original emphasis, footnotes omitted)

Count 1 – Attempted murder of Ms Speechly-Faulks

10. [10]
    Ms Speechly-Faulks resided with her infant son at 39 Kepler Street, Wulguru.  Her house was directly opposite the house of the deceased, located at 90 Wright Street.  On the evening of 26 July 2016 at approximately 7.20 pm, the appellant and his partner Jade Spark arrived at 39 Kepler Street.  The appellant attended this address in order to arrange for Ms Speechly-Faulks to obtain drugs for him.  An argument ensued between the appellant and Ms Spark as a result of which she left.
11. [11]
    Ms Speechly-Faulks, after putting her infant son to sleep, arranged for the delivery of drugs to her address.  These drugs were paid for by the appellant.  Both the appellant and Ms Speechly-Faulks injected methylamphetamine.  The appellant then approached her from behind and stabbed her.  Ms Speechly-Faulks described the appellant slitting her throat and stabbing her in the back of the neck and then down the side whilst saying “One two three four, you’re dead bitch.”
12. [12]
    She fell to the ground and was screaming.  She recalls the appellant having blood on his arm and wiping it on her face saying words to the effect of “Die, bitch.  Die.”
13. [13]
    She recalls hearing the front door slamming open.
14. [14]
    Ms Speechly-Faulks cried for help and managed to pull the kitchen house phone down to call an ambulance.  She made a triple zero call at 10.29 pm.
15. [15]
    She recalls paramedics attending and subsequently waking up in hospital.
16. [16]
    She stated that she did not leave her house after having been stabbed by the appellant.  She thought that the knife used by the appellant was one of the knives from the kitchen block.
17. [17]
    Photographs taken by police of the kitchen showed blood on the tiled floor as well as the telephone on the floor.  Ms Speechly-Faulks stated that the phone was not normally kept on the floor.
18. [18]
    In cross-examination she accepted that in 2016 she had a significant drug problem.  Prior to the appellant’s arrival at her house, she admitted that she had already smoked some methamphetamine.
19. [19]
    She accepted that she was under some financial stress at the time and unemployed.  She was however, in receipt of the Newstart Allowance.
20. [20]
    Ms Speechly-Faulks had grown up at 39 Kepler Street and knew the deceased.  She had been to the deceased’s house when she was younger.
21. [21]
    In cross-examination she admitted that she had lied to police, telling them that she had not used any drugs with the appellant on the night of 26 July 2016.  She also falsely told police that she did not have a mobile phone.  She had a number of drug associates who could have been identified through her mobile phone.  She also accepted that she had told police that on the night in question the appellant had left her house for some time.  She explained that she made this statement because she feared that the Department of Child Safety would remove her infant from her if she admitted she had taken drugs with the appellant at her house.
22. [22]
    The relevant DNA evidence is discussed below.  The DNA analysis (Exhibit 77) indicated the presence of Ms Speechly-Faulks’ DNA under the left hand fingernails of the deceased.  Ms Speechly-Faulks was cross-examined in relation to this issue:

“… Ms Speechly, you have no explanation, and we’ll hear some evidence about this later, but no explanation for your DNA under the fingernails of the deceased? … I never left the house.  There’s bound to be my blood everywhere, but that’s …”^[2]

23. [23]
    As will become apparent, the DNA analysis revealed that Ms Speechly-Faulks’ DNA was present at a number of locations in Wright Street apart from her own house and the house of the deceased.  Her DNA was located, for example, at the porch landing at 88 Wright Street, and on a fence and security grill at 71 Wright Street.
24. [24]
    There was evidence from a critical care paramedic from Queensland Ambulance Service who attended at Ms Speechly-Faulks’ home at 10.42 pm on the night of 26 July.  Police had already arrived.  The paramedic located Ms Speechly-Faulks in the kitchen with her head towards the sink.  The paramedic observed that there was a large amount of blood soaked into her clothing and also pooling out around her on the kitchen floor.  A police officer was already applying direct pressure to an actively bleeding wound on Ms Speechly-Faulks’ head.  Upon examination, the paramedic observed multiple penetrating injuries on her left back, through her flank and across her left chest.  There was also a wound across her neck.  She was placed on a board and then onto a stretcher for the purposes of moving her out of the residence.  The paramedic noticed that one of the wounds in her axilla, which was under her arm near her armpit, had become an open sucking chest wound which was indicative of open pneumothorax.
25. [25]
    She was transported to hospital and was treated by a surgeon, Dr McCallum.  Dr McCallum’s evidence was that Ms Speechly-Faulks had received multiple stab wounds with multiple injuries to her face, trunk and limbs.  Some of the wounds were deep into the musculature, resulting in bone injuries.  There was gas in the cavity of her abdomen and in the cavity of her chest.  At least two of the stab wounds had penetrated cavities causing air inside the chest.  The wound to the neck was a deep laceration.  There was also a penetrative wound to the left breast.  Dr McCallum opined that if the pneumothorax had been left untreated it potentially would have led to death.  Similarly, any of the deep wounds could have become infected, as one of them did, and if left untreated could have also led to severe illness or death.
26. [26]
    While the appellant does not challenge the conviction in relation to Count 1, the defence hypothesis advanced at trial was that prior to the appellant attempting to unlawfully kill Ms Speechly-Faulks but after injecting methylamphetamine, Ms Speechly-Faulks became paranoid and attacked the appellant.  Thereafter they both went to the deceased’s residence where Ms Speechly-Faulks killed the deceased.  They then returned to Ms Speechly-Faulks’ house where the appellant attempted to unlawfully kill her.
27. [27]
    The Crown case was that after attempting to unlawfully kill Ms Speechly-Faulks, the appellant went on a rampage down Wright Street.  This rampage is reflected in the offending constituted by Counts 4 to 7 which is not challenged by the appellant.

Count 4 – Attempted murder of Jason Cox

28. [28]
    Mr Haines was an eyewitness to the attack by the appellant on Mr Cox.  Mr Haines lived at 88 Wright Street.  His neighbour was the deceased who resided at 90 Wright Street.
29. [29]
    While Mr Haines was watching television at approximately 10.20 pm he heard voices at the front of his house with someone calling “Help me” and “Somebody help me, please.  Is anybody there?”  Mr Haines looked outside through a security screen where he observed the appellant, who was naked and huddled in the corner of the patio.  Mr Haines’ wife was asleep on the lounge.  The appellant said to Mr Haines “Help me.  Can you please let me in?  Someone’s trying to kill me.  I’ve been stabbed”.  Mr Haines responded that he would not let the appellant in.  Thereafter the appellant’s demeanour changed and he went into a rage and started hitting and pounding on the security door.  He yelled “Is this Crimsafe?”, to which Mr Haines replied in the affirmative.  The appellant then said words to the effect “I’m going to kill some people tonight”.  Mr Haines made a triple zero call at 10.24 pm.
30. [30]
    After the appellant had stopped hitting and pounding on the security door, Mr Haines looked down the street towards 86 Wright Street which was the residence of his other neighbour, Mr Cox.  He could see that Mr Cox was sitting in his car with his family.  He observed Mr Cox leave the car at which stage he was attacked by the appellant who lunged with a swinging arm towards Mr Cox and hit him in the face.  Mr Cox then ran towards Mr Haines’ house where he was eventually let in.  Mr Haines observed the appellant “zigzagging” across the street and going into other properties.  He then heard glass smashing and a commotion further down the street.
31. [31]
    Mr Haines’ evidence was that it was only the appellant he observed on the patio.  Significantly however, DNA analysis of the patio at 88 Wright Street revealed that it was estimated that the profile obtained was greater than one hundred billion times likely to have occurred if Ms Speechly-Faulks had contributed to DNA rather than if she had not.
32. [32]
    Mr Cox’s evidence was that the appellant, who was naked, came up to his motor vehicle and said “Help me.  They’re trying to kill me”.  The appellant appeared to be holding onto a shirt and a knife.  Mr Cox’s children were in the car.  The appellant lunged at Mr Cox’s face with a knife and cut through the top right side of his face into his gum.  Mr Cox then proceeded to Mr Haines’ residence.

Count 5 – Threatened violence to John Costanzo

33. [33]
    Mr Costanzo resided at 83 Wright Street.  On the night of 26 July 2016, he was at home watching television when he heard his dog barking aggressively.  He observed the appellant crouching over a fire hydrant.  The appellant said, “I’ll fucking kill that dog”.  He then picked up the lid of the fire hydrant.  Mr Costanzo said, “Leave the dog alone”.  The appellant then vaulted over the fence saying, “I’m coming to get you now”.  The appellant came towards Mr Costanzo holding the fire hydrant lid.  The appellant then departed.  Mr Costanzo heard breaking glass.

Count 6 – Wilful damage of windows

34. [34]
    Mr Castle resided at 77 Wright Street.  On the night of 26 July 2016, he had retired to bed at approximately 9.00 pm.  He was awoken by the sound of breaking glass.  As he walked down the hallway of his house he heard a person screaming “Come out.  Come out or I’m coming”.  When he was further down the hallway he heard a sound like an explosion and a window imploding.  He made a triple zero call at 10.28 pm.  His lounge window had been broken.  The DNA analysis for the front steps of 77 Wright Street estimated that the profile obtained was greater than one hundred billion times likely to have occurred if the appellant had contributed to DNA rather than if he had not.

Count 7 – Threatening violence to Daniel Short

35. [35]
    Mr Short resided at 75 Wright Street with his cousin Aaron Cox, who was the brother of Jason Cox.
36. [36]
    Mr Short had retired to his bedroom at approximately 10.00 pm.  About 10 minutes later Aaron Cox alerted him to a situation.
37. [37]
    He had been in the living room watching television when he heard the windows of the house next door being smashed.  He ran out to the driveway and observed the appellant smashing windows and bashing the door of his neighbour at 77 Wright Street.  The appellant was saying “I’m going to kill you.  Where are you?”.  Aaron Cox said to the appellant “Fuck off, he’s not home”.  The appellant replied, “I’m on a killing spree”.  He noticed that the appellant had something in his hand which he was clutching.  The appellant approached him saying “I’m going to kill everyone”.
38. [38]
    Aaron Cox ran inside to the house and alerted Mr Short.  They both observed the appellant punching a yellow Mitsubishi Lancer.  While the appellant was doing this he stated “I’m on a killing spree.  I’m going to kill everyone”.
39. [39]
    Mr Short observed the appellant then punching a red Mitsubishi Pajero.  The appellant jumped on top of the roof and started jumping up and down on the roof.  Mr Short told the appellant to “Fuck off”.  The appellant went to 70 Ridley Street where he started to punch a white Hilux.  Mr Short heard some loud crashes and banging.  The appellant then approached Mr Short armed with a fence paling.  The appellant commenced running towards Mr Short stating that he was going to kill him.  Mr Short noticed that the appellant was naked and covered in blood.
40. [40]
    The DNA analysis of the Mitsubishi Lancer showed that it was greater than one hundred billion times likely to have occurred if the appellant had contributed to DNA rather than if he had not.  The DNA analysis of the fence and a security screen at 71 Wright Street returned results for the DNA of the appellant, Ms Speechly-Faulks and the deceased.

Statements made by the appellant when apprehended

41. [41]
    The appellant did not participate in a record of interview with police.  He did tell a police officer the following:

“Brittny and I had a shot of meth.  Brittny made up a shot of something else in a syringe and injected me.  Whatever it was made my dick and arse hurt funny and start leaking.  I noticed a knife sitting on the bench.  Brittny picked up the knife – the knife’s on the bench – Brittny picked up the knife and held it behind her back.  I walked over to her, gave her a hug, asked her what was wrong.  I thought she was trying to kill me, so I stabbed her and cut her head off.”

The appellant went onto say:

“People in the street were chasing me, trying to kill me.  Someone shot me and someone else stole my pants.  I wonder why Brittny stabbed me.  It would have to be for Kirby or Krystal.  The maggots tried to stab me.  I wonder how poor Brittny is going.  Is she dead?  Something happened to me, and I thought I was doing to die.  It was kill or be killed.  Maggots.”

The appellant’s shorts were located by police at the house of Ms Speechly-Faulks.

42. [42]
    The appellant was apprehended at 10 Lister Crescent.  The appellant, who was still naked, was found crouching on his hands and knees on the bonnet of a white utility.  He was covered in blood.  Police observed that the appellant appeared to be quite erratic, drug affected and paranoid.  A fence paling as well as a black handled kitchen knife which was covered in blood were located parallel to the windscreen of the vehicle.  The appellant was tasered a number of times.  The appellant said to police “Just shoot me.  Kill me” and “I’m on a killing spree.  I want to be famous.  I’m going to be famous”.
43. [43]
    Significantly, DNA analysis of the knife located with the appellant at 10 Lister Crescent revealed that there were three contributors to DNA, namely the appellant, Ms Speechly-Faulks and the deceased.  A palm print of the appellant was recovered from the knife.

Counts 2 and 3 – Entering the dwelling and unlawfully killing the deceased

44. [44]
    The body of the deceased was not discovered until the morning of 27 July 2016.  One of her neighbours noticed that she had not collected her newspaper as was her habit.  The neighbour had a spare key to gain entry to the deceased’s house.  He discovered the body of the deceased lying on her back with her eyes open in the lounge room.  She was dressed in a white nightgown and had a pair of slippers on.  He noticed blood in the position of the left chest of the deceased.
45. [45]
    The results of the autopsy of the deceased were the subject of admissions.  The pathologist concluded that the cause of death was a stab wound to the chest.  The stab wound was directed from front to back and neither upwards or downwards and was from left to right.  The knife perforated the arch of the aorta causing a wound track of at least 10 centimetres in length.  The likely survival period from such a wound was unlikely to be more than 30 minutes.
46. [46]
    In addition, the pathologist noted that the blade of the knife that was recovered where the appellant was apprehended, measured approximately 13 centimetres.
47. [47]
    The pathologist also noted an incised wound 1.8 centimetres long on the outer aspect of the right chest with its midpoint at 20.5 centimetres to the right of the midline and 122 centimetres above the heel.  The wound was described as superficial and possibly caused by the tip of the knife perforating the clothing.  It was also noted that there were incised injuries to the back of the left fingers and back of the left wrist which were consistent with defence type injuries.  During the post-mortem, fingernail scrapings were taken from the right and left fingernails of the deceased.  As noted above, the DNA profile of the left hand fingernails of the deceased identified two contributors, namely the deceased and Ms Speechly-Faulks.
48. [48]
    It was determined that the likely point of entry/exit to the otherwise locked house of the deceased was through a security screen that had been removed from an unlocked window at the front of the house.  A fingerprint examination of the wall near the window resulted in the left palm print and the right and left thumb prints of the appellant being identified.  The palm print was consistent with the palm print on the knife.  Importantly there was no evidence of prints of Ms Speechly-Faulks being located.
49. [49]
    The DNA evidence from the body and house of the deceased is summarised in Exhibit 77.  DNA consistent with the appellant’s was located on the top of the window ledge, on the window sill and on the security screen which had been removed.
50. [50]
    DNA analysis also established that the DNA of Ms Speechly-Faulks was found in vegetation in the garden bed, on a wall where the DNA of the appellant was also located, on the front window ledge, on a window frame on the eastern side of the residence, on a curtain as well as the security screen.  Ms Speechly-Faulks’ DNA was also located on the nightdress of the deceased.  In several instances however, the DNA of Ms Speechly-Faulks appeared to be from blood.  This observation arises from the evidence of a Queensland Police Service Scientific Officer, Sergeant Bartulovich.  At the residence of the deceased he observed several areas of blood staining over the exterior wall, the ledge and within the garden bed.  In the garden he categorised the blood as being “drip stain” which was a circular shape stain found on leaves.
51. [51]
    At trial the Crown contended that as Ms Speechly-Faulks had been the subject of an attempted unlawful killing by the appellant which resulted in her bleeding from a number of serious wounds, the transference of her DNA to the appellant and the knife used to stab her was inevitable.  This conclusion was supported by evidence of the presence of Ms Speechly-Faulks’ DNA at several locations in Wright Street, including on a swing set and the security grill at 71 Wright Street and the bonnet of the white utility at 10 Lister Crescent.  As already noted, the DNA of Ms Speechly-Faulks was also located at 88 Wright Street.

Consideration

52. [52]
    The hypothesis that it was Ms Speechly-Faulks who killed the deceased was founded on three primary propositions.
53. [53]
    The first was that Ms Speechly-Faulks was not a credible or reliable witness.  Accordingly, her evidence that she never left her house on the night of 26 July 2016 should have been rejected.  Her creditworthiness and reliability were to be assessed against various factors, including her being a drug addict who had lied to police.  She had denied taking drugs with the appellant, she denied having a mobile phone and had lied about the appellant leaving her residence and coming back.
54. [54]
    There are a number of difficulties with this first foundation for the hypothesis.  The learned trial judge gave the following direction in accordance with Robinson v The Queen (1999) 197 CLR 162:^[3]

“You will also recall her evidence was that she was an intravenous drug user, addicted to methylamphetamine and a regular consumer of cannabis.  She also admitted to being a supplier of dangerous drugs.  She gave evidence that on the day in question she’d consumed methylamphetamine and cannabis.  Her evidence was that she’d had a shot of methylamphetamine at the time the defendant had his shot of methylamphetamine.  The evidence of her dishonesty and her drug use raises for consideration by you whether her evidence is reliable and should be accepted.  While it is a matter for you whether her evidence is reliable and accurate, you should take great care.  You should scrutinise her evidence very carefully and not act on it unless after careful consideration and scrutiny you are satisfied beyond reasonable doubt that her evidence is accurate and reliable.  If you have a reasonable doubt about the accuracy and reliability of her evidence, then you should not convict the defendant of count 1, and you should find him not guilty on count 1.  If however, you are satisfied after scrutinising her evidence and considering it carefully…satisfied beyond reasonable doubt that her evidence is accurate and reliable, then you should consider her evidence together with the other evidence relevant to count 1 and the consideration of whether the prosecution has proven its case beyond reasonable doubt.  I give you that direction as a matter of law.”  (RB 127 l40 – RB 128 l11).

55. [55]
    With the benefit of this direction, the jury still found the appellant guilty of Count 1.  The appellant does not challenge the conviction in relation to this count.  Ms Speechly-Faulks’ evidence as to the appellant’s offending was entirely consistent with and supported by the nature of her injuries.  Having accepted Ms Speechly-Faulks’ evidence in relation to Count 1, it was open for the jury to accept her evidence that she did not leave her residence.
56. [56]
    As to her lies to police, these are capable of logical explanations.  By denying she had a mobile phone, she sought to protect contacts involved in drug dealing.  By lying to police about taking drugs with the appellant, she sought to maintain custody of her infant child.
57. [57]
    The second foundation for the hypothesis is that both the appellant and Ms Speechly-Faulks had consumed drugs from the same batch.  Ms Speechly-Faulks would have therefore experienced the same side effects from the drug as did the appellant.^[4]  The difficulty with this second suggested foundation is that there was no evidence to support it.
58. [58]
    Dr Drummer, who was a specialist in pharmacology and toxicology, gave evidence of the various drugs that were found in the appellant’s blood.  This was a matter of admission.  A sample of blood taken from the appellant at 12.30 am on 27 July 2016 detected a 0.01mg/kg of amphetamine, 1.0 mg/kg of methylamphetamine, 0.008 mg/kg of tramadol and 0.02mg/kg of O-desmethyltramadol.  There was no evidence that Ms Speechly-Faulks either had the same drugs or same level of drugs in her blood as the appellant.
59. [59]
    More importantly, Dr Drummer gave evidence that the effects of methylamphetamine may vary:

“Well, the effects would vary a lot depending on the dose and the individual concerned and with other drugs may be present, but a general – the effects of methylamphetamine is it increases one’s awareness.  It wakes one up if one’s not awake completely.  Greater sense of self – a sense of strength and aggressions often associated with particularly larger amounts of methamphetamine, and violence, to some degree.”

60. [60]
    While there was evidence that Ms Speechly-Faulks was a regular user of methylamphetamine, the evidence in relation to the appellant was not clear.  There was simply no evidentiary foundation to support an assertion that Ms Speechly-Faulks would have reacted in the same way as the appellant to injecting the same batch of methylamphetamine.
61. [61]
    The third foundation for the hypothesis was the presence of Ms Speechly-Faulks’ DNA at and inside the home of the deceased, and in particular, being found under the deceased’s left hand fingernails.  The Crown case was that because Ms Speechly-Faulks had been viciously attacked by the appellant, any of her DNA found on the deceased or at the house of the deceased would have been transferred by the appellant himself or his use of the same knife.  In his closing address, defence counsel accepted that there were two inferences that arose from the forensic evidence in relation to the body of the deceased and her house.  The first was that if the jury accepted that Ms Speechly-Faulks never left her house then the jury would accept that it was transfer DNA.  The second inference was that there were two persons at the house of the deceased, namely the appellant and Ms Speechly-Faulks.  This inference, however, required the jury to both reject Ms Speechly-Faulks’ evidence that she never left her home and also that her DNA found on the body of the deceased and at the house of the deceased was not transfer DNA.
62. [62]
    A greater difficulty with this third foundation is that there was unchallenged evidence supporting the conclusion that Ms Speechly-Faulks’ DNA was transfer DNA.  As already observed, Ms Speechly-Faulks’ DNA was located at several locations in Wright Street.  This is in circumstances where witnesses had only seen the appellant.  A number of these witnesses as discussed above, observed that the appellant was covered in blood and carrying a knife.
63. [63]
    Further, when apprehended by police, the appellant was found with the knife.  When analysed the knife had the DNA of the appellant, Ms Speechly-Faulks and the deceased.  As correctly submitted by the respondent, the only rational inference open was that the same knife was used to cause the injuries to the deceased and to Ms Speechly-Faulks and was responsible for the transference of Ms Speechly-Faulks’ DNA to the nightdress of the deceased.^[5]
64. [64]
    The learned trial judge gave the standard direction in relation to circumstantial evidence for Counts 2 and 3.  The jury were instructed that to reach a verdict of guilty based entirely or substantially on circumstantial evidence, guilt should not only be a rational inference, but it must be the only rational inference that can be drawn from the circumstances.  If there was any reasonable possibility consistent with innocence, it was their duty to find the appellant not guilty.^[6]
65. [65]
    When one considers the evidence as a whole, it was reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt, the reasonable hypothesis that Ms Speechly-Faulks killed the deceased.
66. [66]
    Once that hypothesis was excluded by the prosecution, it was reasonably open, on the whole of the evidence, for the jury to be satisfied beyond reasonable doubt that the appellant entered the residence of the deceased and unlawfully killed her.  The circumstantial case was based in the most part on undisputed evidence, in particular (as set out in the respondent’s written submissions):

    1. (a)
       The appellant being at 39 Kepler Street, directly opposite 90 Wright Street on the evening of 26 July 2016.
    2. (b)
       The appellant armed himself with a knife at that address.
    3. (c)
       The appellant used that knife to carry out an attack on Ms Speechly-Faulks.
    4. (d)
       That attack resulted in her bleeding and the likely transference of DNA from her to the appellant and to the knife.
    5. (e)
       The appellant was seen in the street brandishing a knife.
    6. (f)
       The appellant was seen in the street covered in blood.
    7. (g)
       The appellant asked to access other houses in Wright Street.
    8. (h)
       The appellant attacked Mr Cox in the street with a knife.
    9. (i)
       The appellant attempted to gain entry to 71 Wright Street by trying to take a security screen off.
    10. (j)
        The appellant damaged a window next to a door at another address.
    11. (k)
        The appellant was located next to a knife at 10 Lister Crescent.
    12. (l)
        The knife was consistent with the one Ms Speechly-Faulks was injured with.
    13. (m)
        The knife was consistent with the one which inflicted the fatal injury on the deceased.
    14. (n)
        That knife had the appellant’s palm print on it and had DNA consistent with his, Ms Speechly-Faulks’ and the deceased’s DNA on it.
    15. (o)
        DNA consistent with the appellant’s, and Ms Speechly-Faulks’, was located at various locations in the street, including the house next door to the deceased’s residence. Ms Speechly-Faulks had not been at those locations. It had to have been sourced from the appellant.
    16. (p)
        A security screen at 90 Wright Street had been removed and was the likely point of entry/exit.
    17. (q)
        The appellant’s palm print and fingerprints were located on the wall where the screen had been removed.
    18. (r)
        DNA consistent with the appellant’s was located on the wall, the window ledge, the windowsill and the security screen.
    19. (s)
        DNA consistent with Ms Speechly-Faulks’ could be explained by transference.
    20. (t)
        There was no other evidence linking Ms Speechly-Faulks to 90 Wright Street.
    21. (u)
        Statements by the appellant of his intention to stab or kill someone and be famous.

Disposition

67. [67]
    The appeal should be dismissed.
68. [68]
    BODDICE JA:  Flanagan JA has comprehensively summarised the evidence and the cases advanced by the prosecution and defence at trial.  I gratefully adopt that summary.
69. [69]
    Once regard is had to the circumstances of the offending, the subjects of counts 1, 4, 5, 6 and 7, a consideration of the evidence establishes that the only rational inference, on the evidence as a whole, was that it was the appellant who entered the house of the deceased and murdered the deceased.
70. [70]
    The verdicts on counts 2 and 3 were not unsafe and unsatisfactory.
71. [71]
    I agree the appeal should be dismissed.
72. [72]
    RYAN J:  I agree that the appeal should be dismissed for the reasons of Flanagan JA and Boddice JA.