R v TAZ[2023] QCA 137

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Dalton JA.  I also agree with the additional observations made by Boddice JA.  I agree with the orders proposed by his Honour.
2. [2]
   DALTON JA:  Both appellants were convicted by a jury of the murder of a 15 year old, Angus Beaumont.  At the time of the killing the first appellant had just turned 14 years old, and the second appellant was nearly 15.  They both appeal against conviction.  Both say that their convictions were unreasonable and alternatively, that there were specific errors made during the summing-up which entitle them to a retrial.  In my view, there is nothing in the first ground of appeal, but both are entitled to a retrial.  I explain the reasons for my views.

Unreasonable Verdict

3. [3]
   The appellants were hanging around a park near the intersection of Anzac Avenue and Oxley Avenue, Redcliffe about 7.50 pm at night.  Both of them were carrying knives.  There they encountered a group of four other youths who they did not know: the deceased, SJ, ST, and NM.  SJ was 16 and the rest of the second group were 15 years old.  SJ asked the appellants if they wanted to buy some cannabis.  They did.  They wanted to buy 1.5 grams of cannabis for an amount of $25.  However, they had no money.  They rang a friend, NH, and he came down to meet them with the required money.

CCTV Footage

4. [4]
   There was CCTV footage of many of the events relevant to the case.  The exchange of money for drug occurred outside a toilet block in the park.  There is no CCTV of that exchange.  However, there is footage showing the two appellants and their friend NH going inside the toilet block to weigh the cannabis.  TAZ came out of the toilet block by himself.  SJ and his friends were waiting outside the toilet block.  TAZ’s interaction with the SJ group is not recorded.  After about 10 seconds TAZ went back inside the toilet block.  Ten seconds later he emerged from the block again.  Then about 10 seconds later SED came out, hurrying.  Separate footage shows SJ and the others in his group backing away from the toilet block before turning and running away.  NH remained in the toilet block for a little while longer.  When he came out he looked around.  Everyone else had gone.  He then sat on sat bench outside the toilet block.
5. [5]
   CCTV shows that the four teenagers in the SJ group run off in different directions.  It shows that the two appellants vigorously pursued SJ across public parkland.  All three lads are running fast.  SJ has his bag in his hands.  Then all three slow down, perhaps out of breath.  SJ turns around to face the appellants.  He seems to talk to the appellants.  He has one arm outstretched in a gesture which might be conciliatory.  After that he continues to walk away from the appellants and they continue to follow him, they are also walking.  The heat has gone out of the chase, but the appellants move separately to SJ.  They are still following him, they are not walking together.
6. [6]
   Separate CCTV cameras pick up the deceased running separately for a distance.  He appears to lose track of the others and makes a gesture, perhaps of confusion or frustration, before walking off in a different direction.  Later CCTV shows him at a bus stop in Oxley Avenue where ST and NM have also gathered.
7. [7]
   SJ walks towards the bus stop from a different direction.  When SJ gets close to Angus Beaumont, Angus Beaumont appears to take something from SJ.  The footage shows that after this Beaumont has a knife.  Beaumont is very much taller and more physically developed than SJ.  SJ retreats behind Angus Beaumont, leaving Angus Beaumont with the knife confronting the two appellants, who now also arrive near the bus stop having followed SJ to that point.
8. [8]
   Angus Beaumont takes three or four steps towards the appellants. He carries the knife in his right hand but does not raise it aggressively.  SED in particular runs up to him aggressively.  He still does not raise the knife and takes a couple of steps backward.  He then takes a couple of steps forward in TAZ’s direction, the hand with the knife in it is still by his side.  SED is now positioned between Beaumont and SJ.  He distracts Beaumont’s attention from TAZ, and Beaumont turns his back on TAZ.  TAZ walks forward and stabs Beaumont once.  He goes to stab him again but Beaumont has already fallen to the ground.
9. [9]
   NH has arrived on his bike and is very close to the stabbing at the time it occurs.  The appellants react almost instantly to Beaumont falling to the ground.  One or two seconds after this they appear to slap hands at waist level before they run away in company with NH on his bicycle.  SJ and ST are slower to react.  The first thing SJ does is to retrieve the knife from Beaumont’s hand and put it in his bag.  ST emerges from the bus shelter and bends down to remove the knuckle dusters from Beaumont’s hand (see her evidence below).  After that she appears to be using her phone.  She may be ringing an ambulance.  SJ then does pay attention to Beaumont’s condition.  Soon after another man (DH) arrives and attends to Beaumont.
10. [10]
    As in many cases where there is extensive CCTV footage, one assumes that a jury acting rationally would prefer that evidence, where it is clear enough, to conflicting oral accounts.  In this case that took on a particular focus, as some of the witnesses (properly) called by the prosecution were witnesses which the Crown submitted to the jury were not impressive, and others were young.  Against that background I turn to the oral evidence in the case.

The Oral Evidence

11. [11]
    NH gave evidence that at the time of the killing he was 17 years old and knew the appellants.  On the evening of the killing he was at home and TAZ called him and said there were some kids at the skatepark selling marijuana.  That caused NH to go to the skatepark and buy some of the marijuana so that he could give it to TAZ.  The background to that was that he “owed” TAZ seven grams of cannabis.  NH took $25 to the skatepark and gave it to SED.  SED paid SJ and received the marijuana.  He and the two appellants went into the toilet to weight it.  It was NH’s idea to weigh it; that was something he routinely did.  He thought the cannabis looked “pretty bad at the start” – t 2–63, but then it weighed up properly.  He could not recall whether there was any discussion with the appellants about his view that he thought the drug looked pretty bad, or underweight, before he weighed it up.  He thought that SED left the toilet before he finished weighing it up.  It weighed at 1.8 grams, slightly more than had been promised; this was not challenged.
12. [12]
    The necessary implication from his evidence is that at some point both the appellants left him in the toilet with the marijuana.  He continued to weigh the marijuana and by the time he left the toilet block “everybody was gone” – t 2–53.  He sat on a seat outside the toilet block, and four or five minutes later he heard yelling in the distance and one voice saying, “Come on cunt”.  He also heard a voice saying, “We can give you the money back”.  He attributed the last comment to one of the group who had sold the marijuana.  As to the first comment he agreed he was familiar with both appellants’ voices and he could not say that he recognised the voice.  He agreed with the proposition that therefore, it was fair to say it was not one of the appellant’s voices – t 2–66.
13. [13]
    When he heard yelling in the distance he rode his bicycle towards the noise.  He got to a point where he could see someone lying on the ground and a group of people standing around that person.  The appellants were both running from that scene towards him.  He rode his bike with the appellants as they kept running away.  At some point they stopped and TAZ said, “I stabbed him” two or three times.  SED asked for the marijuana which had been bought and NH gave it to him.  SED snatched it off him because he was in a hurry and they both rode off away from NH – t 2–56.
14. [14]
    ST gave evidence that she was with SJ and Angus Beaumont that night.  All three of them had smoked marijuana earlier that evening.  She was SJ’s girlfriend and knew he had marijuana in his bag.  She assumed he had knives in his bag as he habitually did.  She knew that there was an arrangement between the appellants and SJ to buy marijuana but she did not see the transaction take place.
15. [15]
    At one point in her evidence she said that while she and her friends waited outside the toilet block she saw the two appellants come out of the toilet block together and that they were both armed because she could see knives in their hands – t 3–39.  In cross-examination she said that the taller of the two appellants (TAZ) came out of the toilet by himself first – tt 3–61–62.  On another occasion in cross-examination she said that the two appellants came out of the toilet together and one of them put a knife to SJ’s gut – t 3–42.  She identified that as being the taller of the two boys (TAZ).  She said that when that happened SJ backed away and then “we all just ran” – t 3–44.  She remembered that when the person held the knife towards SJ he said the words, “Give us” – t 3–46.
16. [16]
    It was put to this witness that she deliberately withheld information she thought would be useful from the police.  She agreed.  It was put to her several times that she gave false information to police.  She agreed.  She agreed that as soon as Angus Beaumont fell to the ground she removed his knuckle dusters and put them in her pocket.  She did this before making any check as to his condition.  Before police arrived she hid her bag and SJ’s bag in a bush deliberately so that police would not find the drugs (and perhaps the knives) contained in them.
17. [17]
    Her evidence was that once the appellants drew near to the bus stop and Beaumont was standing in front of SJ, both groups told each other to “fuck off” – t 3–57.  At another point in her evidence she said that she was not aware of anything being said by the appellants at that point – t 3–25.  She said she saw an altercation in which Beaumont was kicking out and swinging at the two appellants.
18. [18]
    She called triple-0 and asked for an ambulance.
19. [19]
    There are certainly inconsistencies in the evidence she gave in court which a jury might find reflect poorly upon her credit and reliability.
20. [20]
    DH gave evidence that at the time of the killing he was camped nearby the park in question in his camper van.  He heard yelling “something, something money” – t 3–53 and t 3–56.  He saw one large person walking and two smaller people walking behind; he thought they were in “some sort of altercation” – t 3–53.  Then he saw another group of people and a few moments later he heard yelling.  He got up and ran across.  He saw a male lying on the ground with another male standing above him saying, “My friend has been stabbed”.  He attempted to render assistance to Beaumont and directed ST to call an ambulance.
21. [21]
    SJ gave evidence that he had about 10 grams of cannabis in his bag that night.  It was contained in individual clipseal bags, all of which were in turn inside a larger clipseal bag.  He did not show that to the appellants, nor did he show his bag to the appellants.  He did not know the appellants, but they approached and asked whether they could buy a stick, 1.5 grams of marijuana.  He named his price and a little later they met up again and someone gave him $25.  He put that money in his pocket.  The three purchasers went into a toilet, then the taller one came out and pulled a knife on him so he ran.
22. [22]
    He thought that the knife was put to his stomach.  He ran across an oval but his three friends ran to a nearby shop.  The tall boy with the knife chased him for about two minutes or 200 metres.  When he was running he was carrying his bag in his hands.  It contained drugs and weapons.  He reached Anzac Avenue.  He was walking up towards the 7‑Eleven.  The taller of his two customers were still behind him and then he saw Angus Beaumont walking towards him on Anzac Avenue.  He said that Beaumont then “walked past me and tried to stop them from chasing me” – t 4–29.  At that stage it was apparent to him that both his customers were following him.  He said that Beaumont was trying to protect him – t 4–31.  He said he could not recall what happened after that, just that the police arrived.
23. [23]
    He took knives and knuckle dusters out that night partly for protection.  He gave knuckle dusters to Beaumont and a knife to NM at a point in the evening well before they met up with the appellants.  He hid his bag with knives and drugs in it after the killing, but could not remember where he hid it.
24. [24]
    The witness’s answers in cross-examination put beyond all doubt that he was not a reliable or credible witness, a matter which was conceded by the Crown.^[1]
25. [25]
    NM made a statement which was read to the jury.  It said that SJ approached the appellants and asked them whether they wished to buy marijuana and that the appellants said yes, they wanted a stick.  The appellants said they would go to get money.  NM, Beaumont, ST and SJ waited in the street until the appellants came back.  The appellants invited them to come down to the toilets so they could weigh the drug.  SJ gave one of the appellants a stick and he went inside the toilet where the other appellant and NH were waiting.  All three lads walked out of the toilet together and TAZ (the taller one) held a knife to SJ’s waist saying, “Give us your buds” – t 5–16.  NM ran off.  As he did so he saw SJ and Beaumont running in the other direction.  He did not see his friends again until after the killing.
26. [26]
    A further statement from NM contained on a DVD was tendered and as well he gave evidence before the jury.  He added the details that at the time the appellants asked to be supplied with a stick SJ opened up his bag and the appellants could see inside his bag.  NM could also see inside his bag at that stage and could see cannabis.
27. [27]
    SJ gave him a knife which he had on him during the sale.  He kept it up his sleeve and when one of the appellants pulled out a knife he dropped it from his sleeve to his hand and then ran.  When he was standing outside the toilet block he pulled out a knife and he recalls hearing the first of the appellants to come out of the toilet block yelling, “they’re strapped up” – t 5–23.  He accepted that he wrote on an Instagram chat group, at or about the time of the events, “They all started yelling.  Then they all started yelling.  He strapped up when SJ pulled a knife.” – t 5–27.  He stayed in the street by himself until he received a phone call from SJ telling him that Beaumont had been stabbed, then he ran down to the bus shelter where Beaumont lay.
28. [28]
    After seeing Beaumont lying on the footpath after the stabbing he had an epileptic fit.  In cross-examination he said that suffering from an epileptic seizure could impact his memory.  However, the cross-examiner did not put to him that his memory of the things he gave evidence about was affected.
29. [29]
    The medical evidence from a pathologist was that there was one stab wound to the outside aspect of the deceased lad’s upper left chest.  The entry to the wound was 28 millimetres and the track of the wound was downwards and towards the right.  It was 137 millimetres long towards the mid-line.  The wound went through the skin and chest wall, then through the muscle and ribs of the chest, through the middle of his heart and out the other side, back into his chest, and through the aorta.  At least moderate force was necessary to make that wound.
30. [30]
    There were no drugs or alcohol found on toxicology tests.
31. [31]
    Neither appellant gave evidence.

Other Evidence

32. [32]
    The knife which was used to stab Angus Beaumont was never found.
33. [33]
    TAZ was located in a suburb distant from Redcliffe two days later.  SED was located on the same day, in another suburb distant from Redcliffe.
34. [34]
    SED made a spontaneous statement to police when they found him.  He said that Beaumont approached him and his friend with a large knife and they defended themselves.  He said that Beaumont was trying to rob them.  He said that they had bought drugs which were underweight and just wanted their money back.  He said that the drug they purchased did not “weigh up” in the toilet and that therefore they asked for their money back.  As a consequence a knife was pulled, and this caused the appellants to pull their knives.  Then he and TAZ chased Beaumont and the others.  They were promised that they would get their money back, but then Beaumont lunged at TAZ, and TAZ stabbed him.  SED said to police, “Did you search the bag?  There was fucking knives all through the bag, drugs through their bags.  I’m not joking.”

Contentions at the Trial

35. [35]
    The Crown case was that TAZ stabbed Beaumont with intention to do him grievous bodily harm.  The case against SED was more complicated.  It was put on two bases.  First that he aided or encouraged TAZ to kill.  The second basis was that the appellants followed SJ in order to rob him of the backpack containing drugs and/or money.  That is, there was a common purpose of armed robbery, in prosecution of that unlawful common purpose, TAZ stabbed Beaumont with the intention at least of causing him grievous bodily harm.  The stabbing was a probable consequence of engaging in the common unlawful purpose of armed robbery.
36. [36]
    The Crown relied upon the statements by ST and NM to the effect that TAZ said, “Give us” and “Give us your buds” while threatening SJ with a knife and then chased him.  It relied upon the evidence that SED admitted he had seen the contents of SJ’s bag containing knives and drugs, and that NM said that at the time SJ offered to sell the appellants drugs he showed them the contents of his bag so that the appellants could see that contents, as could NM.  Apart from these details, much of the Crown case was documented in the CCTV footage.
37. [37]
    Parts of the defence case were common to the two appellants.  It was said they believed that they had been sold underweight drugs at the toilet block and were motivated to chase after SJ for that reason.  There were difficulties with reconciling this idea with the evidence that the appellants’ aggression toward SJ began before NH had weighed the drug.  And further difficulties caused by the fact that the drug was not underweight.  On the other hand there was some support for it if the jury accepted the statement that NH heard, “We can give you the money back”, which might have been supported by what Mr DH heard.
38. [38]
    The defence case was that during the chase, when all three lads slowed down, and SJ spoke to the appellants, he promised to give them their money back and thereafter “continued to lure” the appellants up towards the bus stop.  First, there was no evidence of what was said.  Secondly, there were difficulties with this notion as SJ had the money which the appellants had paid for the marijuana on his person.^[2]  He also had the bag which contained the drugs.  If he did promise to refund the money, all he needed to do was take it from his pocket and throw it onto the path.  There was no evidence which supports the idea that there was any basis to “lure” the appellants to the bus stop.
39. [39]
    The defence case was that the appellants acted in self-defence or under compulsion in the interaction they had with Beaumont.  All that need be said about this, is that a jury acting reasonably, and understanding the legal requirements of self-defence and compulsion, might conclude that the Crown had excluded those defences when they watched the CCTV footage.
40. [40]
    On behalf of both appellants it was submitted that the jury should find there was no requisite intent on the part of TAZ because he was a young person who did not appreciate just how dangerous his conduct was in a fast-moving situation.  A similar point was advanced on behalf of SED separately: that he could not have intended to assist, aid or encourage TAZ for much the same reasons.  These were matters for the jury, but simply viewing the CCTV footage and paying attention to the non‑controversial medical evidence shows that the jury would certainly not be bound to accept these arguments.
41. [41]
    Separately it was argued on behalf of SED that the Crown had not proved an unlawful purpose to commit an armed robbery beyond reasonable doubt.  Again that was a matter for the jury.  Were they to have found such a common purpose, it would not have been unreasonable.  Even if they were not so satisfied, they may have been satisfied that SED was an accessory pursuant to s 7 of the Criminal Code.  As to this latter point, defence counsel asked the jury to consider whether or not SED actually assisted TAZ.  The jury had CCTV footage which was capable of founding a basis for the jury finding that he did.
42. [42]
    The defence relied upon the fact that after the stabbing the two appellants did not try to take the bag containing drugs.  They simply ran off.  This was something for the jury to consider, but it fell well short of compelling a verdict of acquittal.
43. [43]
    In my view, nothing the appellants advanced in support of their unreasonable verdict ground meant that the jury must have acquitted the appellants on the evidence at trial.^[3]  It is difficult, quite frankly, to see that there was material which supported a properly arguable case that the relevant tests had been fulfilled.

Miscarriage of Justice

44. [44]
    The relevant part of the summing-up which is said to have caused a miscarriage of justice is as follows:

“As to the findings that you may make as to the conduct of Master TAZ after Master Beaumont’s death, that may reveal something as to Master TAZ’s intention at the time of the stabbing. The Prosecution relies on the immediate running away by Master TAZ and Master SED as post-offence conduct and that the knife used in the stabbing was not recovered, as you will recall. But you must remember that people do not always act rationally and that post‑offence conduct may be explained in other ways, for example, as a result of panic, fear or other reasons having nothing to do with the particular offence charged. You have the benefit of the video evidence to assess those sorts of things.

All of these matters must be considered by you in deciding whether you can safely draw any inference from the fact of his conduct, but if and only if you reach the conclusion that there is no other reasonably possible explanation for his post-offence conduct, such as panic or fear of a general kind are you entitled to use that Master TAZ ran away as a circumstance pointing to his guilt of the offence of murder.  Another way of putting that is that before the evidence of the defendant’s post-offence conduct could assist the Prosecution for the offence of murder on intention, you would have to find not only that the conduct was motivated by a consciousness of guilt on Master TAZ’s part to an unlawful killing, but also what was in his mind was the guilt of the offence of murder not manslaughter.

I direct you that the post-stabbing conduct relied on by the Prosecution is too unclear or equivocal to be used by you to infer that Master TAZ had the intention to do grievous bodily harm that is necessary before you could find him guilty of murder. It may be relevant to other questions in terms of reasonableness and response and things of that sort that you deal with in terms of the excuses, but not on the question of intention to do grievous bodily harm.

You must keep in mind that you may only answer the question in question 13, whether Master TAZ intended to do grievous bodily harm to Master Beaumont, ‘yes’, if you are satisfied that Master TAZ had that intent at the time of doing the stabbing. Unless you find an intention to do grievous bodily harm by Master TAZ, you cannot find either of the defendants guilty of murder but depending on your answer to the questions about compulsion and self-defence, you may find Master TAZ guilty of manslaughter.”

45. [45]
    There are difficulties with this passage.  First, it refers to the fact that the knife used to stab Beaumont was never recovered as post-offence conduct.  There was no relevant post-offence conduct suggested by the Crown or the defence.  There was no suggestion that the knife had been hidden or disposed of by the appellants in some way which the jury might use as an implied admission of guilt.  The only evidence was that the police had not been able to find the knife.  That circumstance should not have been spoken of as post-offence conduct.
46. [46]
    Secondly, it was not part of the Crown case that the appellants’ flight could be used as post-offence conduct supporting a guilty verdict on the murder charge.  The first paragraph-and-a-half of the passage above instructs the jury as to the circumstances in which they might use the post-offence conduct of TAZ running away after the stabbing “as a circumstance pointing to his guilt of the offence of murder”.  The Crown case of murder against TAZ was that he stabbed Beaumont with an intent to do grievous bodily harm.  There was of course an alternative case of manslaughter.  This is adverted to in the final sentence of the second paragraph of the above extract from the summing-up.
47. [47]
    The direction in the third paragraph of the passage above is not clear.  On one reading it is in direct conflict with the instruction given to the jury in the first paragraph-and-a-half.  On another reading the judge is instructing the jury that they could use the evidence of flight in relation to the manslaughter case, but not the murder case.^[4]  As Sofronoff P said in R v SDQ:

“It is the duty of a trial judge to warn a jury about the potential for illogical reasoning for reasons that are apparent to those who have forensic experience but which might not immediately be apparent to those without such experience.”^[5]

A clear direction as to what use the jury could, and could not, make of the evidence was necessary.

48. [48]
    The direction recognises that even if TAZ’s flight after the stabbing was too unclear to be used as an implied admission of an intention to do grievous bodily harm, it might be used by the jury in relation to the defence issues of self-defence and compulsion.  This is true, although the jury would be considering it as part of the res gestae, not as post-offence conduct.  But no more is said on this topic either at this part of the summing up, or at the part which dealt with self-defence.  I think more guidance was needed so that the jury understood the different contexts and different uses of this evidence of flight.
49. [49]
    Lastly, there was one piece of evidence as to post-offence conduct which did exist and which was both central to the Crown case, and disputed on a factual basis by the defence cases.  It was the CCTV footage showing the appellants apparently slapping hands immediately after the stabbing.  This was not mentioned in this part of the summing‑up and indeed, was not mentioned in the summing‑up at all.
50. [50]
    The hand slap was central to the Crown case.  The very first point the prosecutor made in opening the case to the jury related to what he said was the hand slap.  In the first minute of his opening the prosecutor put a still from the CCTV footage on the visualiser.  He explained to the jury that they could see Beaumont’s body on the ground, and that the stabbing had taken place moments before.  He said, “Here TAZ.  Here SED and they’re slapping hands.  Slapping hands just after TAZ had stabbed Angus Beaumont.  So the case for the prosecution is that TAZ killed Angus Beaumont with the assistance of SED.”  Later in his opening the prosecutor played part of the recording including the killing and its immediate aftermath.  He again remarked on the fact that the two appellants slap hands.
51. [51]
    In his address to the jury the prosecutor mentioned the hand slap before fleeing as relevant to show, “That is not the action [of] scared little boys trying to ensure that they were not seriously harmed or killed themselves”.  He said, “They were fighting together.  Fighting in a triangle-type formation, you might think.  They were not scared.  They were the aggressors, you can conclude.  They congratulate each other and then they’re off. …”.  Later he said, “Angus clutched at his chest.  The defendants knew they had gotten Angus.  SED’s attention turned away back to SJ again, you can see.  TAZ wasn’t done there though.  He went again at Angus.  He may not have gotten him again, but clearly, he came close.  Angus collapsed to the ground.  He collapsed so heavily that he had abrasions on his head where he fell.  The defendants saw SJ bend down, pick up the knife that Angus had, and put it back in his bag.  They slapped their hands to congratulate themselves and ran off.”  Finally the prosecutor said, “So they – so while they fled the scene, it’s perhaps not the biggest point that the Crown makes.  And of course, it’s not relevant to TAZ’s intent to do grievous bodily harm.  But you might think that photo [of the hand slap] is somewhat compelling.  These were not people defending themselves when they’re slapping hands soon after. …”
52. [52]
    Counsel for the appellants submitted to the jury that they could not be satisfied that the CCTV footage in fact showed hand slapping.  Even if they were so satisfied, it was submitted to the jury that they could not be satisfied that the hand slap was congratulatory, or that it implied anything else which supported the Crown case.
53. [53]
    The jury needed clear instruction as to the need to make a factual finding as to what was shown on the CCTV footage, and then needed clear instruction as to what they could make of a hand slap, if they found that such a thing was shown.  If the jury found that there had been a hand slap, they might have regarded it as very important evidence.  It would likely carry significant emotional weight.  It bore on the issues of intention, s 7 assistance, common purpose and self-defence.  It was very closely connected with what the jury could make of the flight evidence.  The jury was given no assistance at all in relation to this disputed evidence.
54. [54]
    In my view these matters mean that the appellants have made out their case for a retrial based upon a miscarriage of justice.

55. [55]
    BODDICE JA:  Dalton JA’s comprehensive summations of the evidence and cases at trial allow me to briefly state my reasons for concluding that the verdicts of the jury were not unreasonable, but that the directions to the jury in respect of post-offence conduct were apt to confuse, such that there has been a miscarriage of justice warranting the order of a retrial in respect of both appellants.

Unreasonable verdict ground

56. [56]
    Although the Crown case relied on oral evidence from those who had witnessed relevant events, and their reliability was called into question by inconsistencies in those accounts and concessions made in cross-examination, that evidence had to be viewed in the context of the CCTV footage of the events leading up to the infliction of the fatal wound, and of the aftermath.
57. [57]
    A consideration of that CCTV footage allowed a jury to properly understand these events such that the inconsistencies and concessions did not render the Crown case, as a whole, unreliable.  Instead, the evidence as a whole, in the context of the CCTV footage, supported a conclusion that the Crown had excluded beyond reasonable doubt self-defence and compulsion.
58. [58]
    Once that conclusion is reached, an independent assessment of the evidence as a whole establishes that it was open to the jury to be satisfied beyond reasonable doubt of each of the appellant’s guilt of the offence of murder.  There was compelling evidence of a deliberateness on the part of Master TAZ, in inflicting the fatal wound, consistent with the requisite intent to cause the deceased grievous bodily harm.  Similarly, there was compelling evidence that Master SED assisted, aided or encouraged Master TAZ in that intentional act or, alternatively, that the fatal injury was a probable consequence of the unlawful purpose to commit armed robbery.
59. [59]
    For the abovementioned reasons, the verdicts of the jury were not unreasonable.

Directions ground

60. [60]
    The trial judge’s directions in respect of post-offence conduct caused a miscarriage of justice as the directions were inconsistent and apt to confuse the jury as to the proper use of evidence of post-offence conduct, and what evidence was specifically relied upon by the Crown as post-offence conduct.
61. [61]
    First, when directing in respect of post-offence conduct, the trial judge referred to the non-recovery of the relevant knife, in circumstances where the Crown did not rely upon that fact as evidence of post-offence conduct.  Whilst the trial judge did not specifically state that the non-recovery of the knife was itself post-offence conduct, the reference to it in the passage set out in the judgment of Dalton JA at [44] clearly raises the prospect of confusion as to the use the jury may make of that fact.
62. [62]
    Second, the trial judge subsequently directed the jury that “the post-stabbing conduct relied on by the Prosecution is too unclear or equivocal to be used by you to infer that Master TAZ had the intention to do grievous bodily harm”, without explaining to the jury how that evidence may be relevant “to other questions in terms of reasonableness and response”.  Such a direction was internally inconsistent with the earlier direction as to the matters to be considered by the jury in deciding whether they could safely draw any inference from the post-offence conduct.
63. [63]
    Third, the trial judge made no reference to what was a central part of the Crown case, namely, the alleged slapping of hands immediately after the stabbing, when there was a clear factual dispute as to whether what was depicted in the CCTV footage was properly to be described as hand slapping.  It was incumbent upon the trial judge to direct the jury as to the need to first be satisfied that what was shown on the CCTV footage was in fact hand slapping and, then, as to the use the jury may properly make of that evidence in determining whether they were satisfied beyond reasonable doubt of each of the appellant’s guilt of the offence of murder.

Orders

64. [64]
    In CA No 128 of 2022, I would order that:

1. Appeal allowed.
2. Verdict set aside.
3. Retrial ordered.

65. [65]
    In CA No 129 of 2022, I would order that:

1. Appeal allowed.
2. Verdict set aside.
3. Retrial ordered.