R v Elliott[2023] QCA 138

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 24 August 2018, the appellant and Adam Woodward became involved in a fight outside a football club which they had separately attended.  The appellant told Woodward to follow him away from the clubhouse and towards Tramore Street, Rocklea.  During the fight, the appellant was pushed into a fence then onto the ground, with Woodward straddling him and punching him in the head.  Woodward was unarmed.  The appellant had a knife which he had brought to the clubhouse at the start of the night.  The appellant used it to repeatedly stab Woodward, wounding him 17 times.  One strike severed Woodward’s jugular vein, and he died on the street.
2. [2]
   The appellant was tried over two weeks in September 2021.  Of the two issues at the trial (self-defence and intention to kill or do grievous bodily harm), the only real issue was whether the prosecution could exclude self-defence.  On 13 September 2021, the appellant was convicted of murder.
3. [3]
   The appellant challenges the conviction on three grounds of appeal:

   1. (a)
      Ground 1 – the verdict of the jury was unreasonable and cannot be supported having regard to the evidence;
   2. (b)
      Ground 2 – the conduct of the prosecution resulted in a miscarriage of justice; and
   3. (c)
      Ground 3 – the directions to the jury on self-defence and provocation did not adequately explain to the jury the need to relate their consideration of those defences specifically to Woodward’s assault on the appellant by straddling him and punching him in the head from a superior position while the appellant was on his back on the ground.

Overview of the evidence

4. [4]
   Mr Hamlyn-Harris, who appeared with Ms Cousen of Counsel for the appellant, accepted the learned trial judge’s summary of the eyewitness accounts of what happened outside the club.  That permits me to adapt that summary for present purposes.  A full review of the evidence will appear later in these reasons, but this overview encapsulates the pertinent aspects of the evidence.^[1]
5. [5]
   The only witness who saw nearly all of the events of that night and, in particular, the events on the roadway outside the club, and who had not been drinking that night, was Mr Owen.  Owen remembered going down to the footpath where he saw the appellant on the side of the road, opposite the clubhouse.  Owen heard someone say to the appellant, “drop the bottle, drop the bottle.”  Owen saw the appellant drop the bottle.
6. [6]
   Owen said to the appellant, “walk away, come with me.  Just come inside.”  He heard the appellant say towards Woodward, “I don’t want to punch on.  I want to hurt you”, or words like, “[c]ome so I can hurt you,” or “[c]ome and let me hurt you”.  Owen said to the appellant, “mate, just drop it.  Go away and leave it”.  The appellant replied, “if he had disrespected your mum and sister, wouldn’t you want to hurt him too?” Owen heard the appellant say to Woodward, “[c]ome on.  Come on”.  He then saw the appellant start walking towards Tramore Street, and Woodward started to follow him.
7. [7]
   Owen then became distracted by something that another patron, Mr Liu, was doing.  Owen started to push Liu back towards the clubhouse and, in doing so, had his back facing Tramore Street; that is, facing away from the appellant and Woodward.
8. [8]
   When Owen finished doing that, he turned around and saw Woodward throw the appellant into the fence.  Owen had seen each of them moving towards the fence.  They had each other by the shirt at that point.  They were moving the whole time.  Owen thought he was then about three metres away from them.  He described them as being in a standing up wrestle.  As they moved towards the fence, he saw Woodward throw the appellant into the fence.  After that, the appellant was on the ground and Woodward got on top of him.
9. [9]
   The appellant was on his back with his head towards Tramore Street.  Woodward was kneeling on top of the appellant, with his knees on the grass on either side of the appellant.  Woodward had the appellant’s shirt with his left hand, and he was hitting the appellant’s head with his right fist.  Owen saw Woodward strike the appellant three times.  Owen could not see clearly where they connected, but he knew it was the appellant’s head.  Owen said the second blow was slower than the first, and the third was really slow.  He agreed that the punches were hard and that he could hear them connecting.  Owen saw the appellant striking towards Woodward’s neck with a roundhouse action and a closed fist.  Owen thought he saw that about five times.  He did not see anything in the appellant’s hand.
10. [10]
    Owen thought that the time between when he first noticed them fighting near the traffic island and when they were on the ground was about 15 or 20 seconds.  He estimated that the men were on the ground and fighting for about 10 seconds.  Owen then gave evidence of Woodward being pulled up, and the events that occurred after that.
11. [11]
    Liu had been in the clubhouse, and had been drinking.  He came downstairs and heard the appellant telling Woodward to come away from the clubhouse and follow him down the road.  Woodward pushed the appellant first and then the appellant pushed him back.  The appellant went to throw a punch and missed.  Woodward threw a punch back and it landed.  Liu saw Woodward push the appellant on the chest and onto the ground.  He then saw him on top of the appellant, with his legs on either side of the appellant’s body.  He thought that Woodward connected a lot of punches on the appellant; probably six.  He saw the appellant punch towards Woodward’s neck twice.  Liu pulled Woodward off the appellant.
12. [12]
    Mr Haukinimi saw the appellant and Woodward fighting in the middle of the road and exchanging punches.  The appellant started tumbling backwards.  Woodward knocked the appellant down beside the fence, got on top of him, and was striking him.  Woodward punched the appellant in the head, and the appellant punched Woodward in the head.  Woodward was positioned on top of the appellant, and both of them were punching each other.  By the time Haukinimi got there, the appellant was covered in blood.  Haukinimi grabbed Woodward under the armpits and pulled him up.  Haukinimi then let Woodward go, and Woodward stumbled back towards the road.  Haukinimi then noticed the knife in the appellant’s hand, and the appellant said to Woodward, “is that all you’ve got?”
13. [13]
    Mr Blake was also downstairs in the clubhouse.  He heard the appellant and Woodward arguing.  The appellant started walking towards Tramore Street.  Blake thought that Woodward moved towards the appellant, and that they congregated halfway down the street.  As Blake moved towards the appellant, he remembered Woodward rushing past him and hitting the appellant in the face with his fist.  They both went to the ground with Woodward on top of the appellant.  At that point in time, Blake was grabbed by someone and thrown to the ground, and he did not see what happened between them after that.
14. [14]
    Mr Hiku (known as AJ) walked down the stairs in the clubhouse after Woodward, and was downstairs when the altercation started.  The appellant and Woodward walked towards each other with their hands up.  Woodward went to hit the appellant.  The appellant ducked and they started punching each other.  The appellant stumbled backwards.  Woodward jumped on him and started fighting again.  The appellant was on the ground on his back, Woodward was on top of him, and Woodward’s knuckles were making contact with the appellant’s head.  The appellant was getting his face smashed in.  Hiku saw the appellant try to hold Woodward off and try to fight back.
15. [15]
    The appellant also gave evidence of what he remembered.  He was shown CCTV footage taken when he was on the clubhouse balcony.  At about 9 pm, he said to Blake, “let’s go, come on.  Let’s go”.  He next remembered being at the retaining wall opposite the clubhouse and people yelling at him to drop the bottle, which he did.  Addressing Woodward, the appellant remembered saying something like, “you say you apologise.  You haven’t apologised to anyone.  You don’t mean it”.  He remembered saying, “I’m not going to fight.  I don’t want to fight.  I’m not going to punch anyone”.
16. [16]
    The appellant and Blake were walking up the roadway when he heard loud footsteps.  The appellant turned around.  He got hit.  He tried to put his arms up, but the next thing he was on the ground.  All he could see was flashes.  He said he was pinned to the ground, and he was trapped.  He was trying to wiggle his way out to get out of there.  He said he felt like an instinct took over.  He was scared.  He felt blood.  He could not see properly.  He just kept getting these flashes in his head.  He felt for his knife, grabbed it, and started striking with it in random ways.  He said that Woodward was still hitting him, but then he stopped and got off him.  He remembered feeling like it was when he was a child, like he was drowning out in the ocean, being pummelled by waves.  He said he could not breathe, and he was trying to get to the top.
17. [17]
    The appellant said:

“It was just – it was – it was full on.  I was – I didn’t know if he had hit me with anything, or if it was – what hit me, who hit me.  I just – I remember I hit the ground and I was in fear.  I remember that.  I was in fear, and I was trapped.  I couldn’t do anything.  I just defended myself.  I nearly cut my fingers off trying to defend myself.”

18. [18]
    In cross-examination, the appellant said:

“I was on the ground, I was getting hit in the face.  I don’t recall exactly where I was.  I remember getting up and seeing Adam Blake against the fence.”

19. [19]
    The appellant was asked:

“When you turned around and saw that Adam Woodward was approaching you, how far away from you was he?”

20. [20]
    The appellant replied:

“He – like, he, like, hit me.  So as I’ve turned around, I didn’t have any time to react or do anything, other than just defend my face, and then he hit me, and I was on the ground.”

21. [21]
    The appellant was asked: “He has his knees on either side of your stomach or waist area?”.  He answered:

“Yeah, I felt it was more my legs, because I was trying to push out and squirm out.

What part of your legs?---Like my thighs.

So were his knees either side of your hips?---At one stage they – they would’ve been.  I’m not sure.  I – I was just getting hit in the face.  I was – all I could see was flashes.  I couldn’t really see where his knees were.  I could just feel things and – and see flashes.

Did you feel his weight on top of you?---Yes.  At – I – I don’t know what I felt.  I was trapped, so, yes, I would’ve felt some sort of weight, I presume.

You definitely couldn’t get up?---No.  He – he – I wasn’t able to get up.  I tried.”

22. [22]
    In cross-examination, the appellant said he could not remember how many times he had been hit.
23. [23]
    The appellant was cross-examined about the knife, which pocket it was in, and the manner in which he used the knife.  This included the question:

“To inflict that wound – you slashed the knife from the front of his neck to the back, didn’t you?”

24. [24]
    He answered:

“I did whatever I had to do to get away from the situation.  I don’t know where I got him, or how I got him, or if he got on – if – with this force coming down onto me, if that could have possibly happened, as he’s thrusting his hand – or whatever’s in his hand – or fist – into my face and trying to pin me down and punch me and smash my face in.  I – there’s many ways in which he could have been hurt.”

25. [25]
    He was asked if he wanted to contend at trial that Woodward was armed, and answered:

“I know now he was not armed.  At the time, I did not know anything.  I was uncertain of anything at that time.  I thought – there was no thought process, it was only fight or flight.  It was instinctive actions and reactions to a situation I did not expect.  It’s all I could do.  It’s all I did do.  I’m sorry it’s ended up like this, it was either him here or me here.  Either way, that’s how I felt at the time, that’s what I thought at the time.  If it’s not his family there, it’s my family there, either way.”

Ground 1 – unreasonable verdict

26. [26]
    The legal principles applicable where the ground is that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[2]  Dansie reaffirmed the approach set out in M v The Queen:^[3]
27. [27]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[4]

“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M.  The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

[9] The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”.  The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence.  That was the point of the carefully crafted passage in which their Honours stated:

“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 [on the unreasonable verdict ground].  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  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 a 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.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

28. [28]
    The High Court also said:^[5]

“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time.  M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment.  Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.”

29. [29]
    In Pell v The Queen,^[6] the Hight Court said:

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

30. [30]
    In R v Miller,^[7] this Court said:

“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought 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.  The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

The appellant’s submissions

31. [31]
    Mr Hamlyn-Harris submitted that there was a significant amount of background evidence dealing both with the relationship between the appellant and Woodward, and their interactions inside the club before they both went out into the street.  That background evidence was said to be relevant to an assessment of what happened in the street, but the evidence of what happened in the street was itself said to be critical to an understanding of the issues on appeal.
32. [32]
    It was undisputed that Woodward had brought the appellant to the ground, was straddling him, and was punching him in the head as he lay on his back on the ground.  It happened very quickly, and the appellant’s actions in response were immediate.  His Honour told the jury:

“ ...  the evidence is that this took place in a very short space of time.  One witness said 10 seconds.  Another said 30 seconds.  It is not a period of time in which anybody – either [the appellant] or Mr Woodward could reflect upon what was happening.”

33. [33]
    Mr Hamlyn-Harris submitted that it was not open to the jury, on the evidence as a whole:

    1. (a)
       to be satisfied beyond reasonable doubt that the appellant had, in fact, formed any intent in that situation other than to save himself from serious injury or death, as he said in evidence;
    2. (b)
       to be satisfied beyond reasonable doubt that a defence of self-defence (under either section 271 or section 272 of the Criminal Code) (the Code) was excluded; or
    3. (c)
       to find that the appellant had not proven a defence of provocation under section 304 of the Criminal Code on the balance of probabilities.

Summary of the trial evidence

34. [34]
    The evidence at the trial can be conveniently split into several broad sections: (i) background to the relations between the appellant and Woodward; (ii) events at the football club including outside in the street; and (iii) forensic and other evidence.
35. [35]
    The first category includes several prior incidents involving Woodward and the appellant at the football club.  Mr Hamlyn-Harris urged that an understanding of those incidents, and the broader background of the relations between the appellant and Woodward, were critical to a proper examination of the evidence concerning the events of 24 August 2018 and, in particular, the issues on Ground 1 of the appeal.

Background to the relations between the appellant and Woodward

36. [36]
    A number of witnesses gave evidence about their observations and beliefs as to the nature of the relationship between the appellant and Woodward.

Nicholas Owen^[8]

37. [37]
    Owen was employed as a bartender at the football club.  He was first employed in October 2017 by the appellant.  He had a good relationship with the appellant and the appellant was a good boss.
38. [38]
    Prior to 24 August 2018, he witnessed verbal arguments between the appellant and Woodward.  He never saw Woodward start an argument; it was “[o]ften – always – always [the appellant]”.

Sydney Liu Liu^[9]

39. [39]
    Liu knew Woodward through playing football at the club.  Liu also had a familial connection with Woodward, as Liu’s mother’s side was related to Woodward’s father’s side.  Liu knew the appellant as Liu used to manage the bar at the club, and the appellant worked at the bar.
40. [40]
    Prior to 24 August 2018, Liu had not witnessed any other disagreements between Woodward and the appellant.  He did not recall being involved in a disagreement between Woodward, the appellant, and David Morrison on 6 July 2018.^[10]

Adam Blake^[11]

41. [41]
    Blake remembered the appellant receiving a phone call prior to the night of the offence from Woodward while he and the appellant were at the Acacia Ridge McDonalds.  During that phone call, Woodward said, “[y]ou know where I live”.^[12]

Amanda Stollznow^[13]

42. [42]
    In August 2018, Stollznow worked as a volunteer at the football club as the club secretary.  She had known Woodward for a couple of years, and the appellant since he started working at the club in May 2017.
43. [43]
    Stollznow knew that there was a feud going on between Woodward and the appellant.  She recalled a particular incident in the beer garden in June/July 2018, where the appellant’s mother (Joanne Siglin) was selling raffle tickets.  Joanne sat down with Stollznow, who was sitting with Woodward.  The appellant said to Joanne, “[w]hat are you sitting there with that fucking dog for?”.^[14]  Joanne got up and went upstairs, and some words were exchanged between Woodward and the appellant before Woodward left.^[15]
44. [44]
    Approximately two weeks prior to 24 August 2018, Stollznow had a conversation with Woodward in the beer garden.  Woodward told Stollznow that the appellant had said to him, “next time I see you, you’ll have a knife in your throat”, and Woodward was chuckling.^[16]
45. [45]
    On another occasion, Woodward called Stollznow to tell her that the appellant was at his home, and threatening to bring his mates around.  Woodward was under the house with his dogs, and said he was okay.^[17]  Stollznow said Woodward did not seem scared.
46. [46]
    During cross-examination, Stollznow said there was a time when she was banned from the club for calling the appellant a “fucking wanker”.^[18]  She knew of past altercations between Woodward and the appellant, and that the issue got worse after Woodward kicked the door of a car the appellant was in.^[19]
47. [47]
    Stollznow did not mention the conversation she had with Woodward (regarding the appellant saying that he would have a knife at his throat) to police, and had only recently told the prosecutor.  That comment was made about two weeks after the car door kicking incident,^[20] and two weeks prior to Woodward’s death.^[21]  The night Woodward told her about the comment regarding the knife, she did not see the appellant at the club.  Stollznow did not tell police, or anyone else at the club at the time, as she was in shock.
48. [48]
    At the time of the phone call (when Woodward told her that the appellant was at his house threatening to bring his mates over), Stollznow could not hear any noises in the background.  Stollznow said that Woodward did not sound drunk, but had likely been drinking into the early hours of the morning the night before.^[22]

Gae Faulkner^[23]

49. [49]
    Ms Faulkner was employed as a venue manager at the football club.  She had known Woodward for seven or eight years.  She had known the appellant for a number of years, and there was a period of time that he lived with her in 2018.
50. [50]
    There was an incident between Woodward and David Morrison and, in May/June 2018, Woodward contacted Ms Faulkner to ask if he was allowed back at the club.  The text messages were tendered as Exhibit 11.^[24]  In the text messages, Woodward discussed the need for permission to return to the club, and said: “I was always good there until [the appellant] came”, and that, at one point, he had walked over to the club and saw the appellant, so he left.

John Gray^[25]

51. [51]
    In August 2018, Gray was a board member the football club, and the secretary.  He would attend board meetings that would occur once a month, would take the minutes of the meetings, and record incident reports.
52. [52]
    Gray had known Woodward for 20 years, and met the appellant in about 2017.  The minutes showed that the appellant was the manager at the club between 17 May 2017 and 22 April 2018.
53. [53]
    During his time as manager, the appellant submitted incident reports in relation to a man called Jeff on 12 May 2017, and another in relation to Amanda Stollznow on 15 September 2017.
54. [54]
    At a board meeting on 17 March 2018, an incident that had occurred on 9 March 2018 was discussed.  That incident involved Woodward and David Morrison.  The appellant was asked to look into it and complete an incident report, but no report was done.  There was no official ban, but the board had a meeting with Woodward and he said he would ban himself.  Woodward stayed away from the club for roughly three months.
55. [55]
    Prior to the appellant tendering his resignation, Gray had a meeting with him regarding his people management skills.  The discussion related to the appellant’s “wanting instant banning of people, which didn’t warrant people being banned”.^[26]  They further discussed the appellant not fulfilling his duties as manager.
56. [56]
    Gray knew Woodward and the appellant did not get along, but had never witnessed any arguments between them.  Gray did, however, see some bickering between them on an occasion before August 2018.
57. [57]
    At a board meeting on 10 July 2018, there was a discussion about an incident which had occurred on 6 July 2018, but no one spoke to the persons involved as they thought it was finished and there was no reason to ban anyone.
58. [58]
    Gray never received a report from Sarah Wilson that Woodward had been sexually inappropriate with her.
59. [59]
    When Woodward enquired about whether he could come back to the club after his three-month self-imposed ban (ending 1 September 2018), Gray told Woodward that he should stay away until the end of the month and then he was welcome to come back.
60. [60]
    In 2017 and 2018, the police had been called to the club on three occasions.  The club did not want the police coming too often as it may have jeopardised their liquor licence.  The staff had been told not to call police if an incident could be sorted out internally.

Toby Faulkner^[27]

61. [61]
    Mr Faulkner had known Woodward for a few years, and he also knew the appellant.  The appellant moved in with him for a period.  He had never witnessed any incidents between Woodward and the appellant.
62. [62]
    Mr Faulkner had a conversation with the appellant at Joanne’s home where Woodward’s name came up.  The appellant told Mr Faulkner that he would not back down from a fight with Woodward if need be.  The appellant told Mr Faulkner that he had a bad shoulder, so if he had to use a weapon against Woodward, he would.  Mr Faulkner said that the appellant used the words “baseball bat” or “bat”.^[28]
63. [63]
    Mr Faulkner described Woodward as a hard and strong man.  The conversation referred to in paragraph [62] above was to the effect that the appellant would use a bat if he had to because Woodward was a tough man and the appellant had a bad shoulder.  Mr Faulkner did not believe that the appellant was suggesting he was going to go out and bash Woodward with a baseball bat.  The context was that, if there ever was a fight between them, the appellant had only one arm, and Woodward was a tough guy.^[29]

Ocean Taumaletila^[30]

64. [64]
    Taumaletila had known Woodward since he was 14.  In early July 2018, Taumaletila had a phone conversation during which Woodward spoke to him about the appellant.  Woodward told Taumaletila that the appellant had gone over to his house with a group of his mates to beat him up.  Taumaletila told Woodward to “call the cops”.
65. [65]
    Woodward said that he would prefer to go to his father’s house on the Sunshine Coast.  Woodward sounded scared and asked Taumaletila to go over.  The conversation was at night-time.  Taumaletila spoke to Woodward the next day.  Woodward said he was fine and was at his father’s house.  It was possible that the phone conversation could have been on 7 July 2018 at 10.30 in the morning.
66. [66]
    Taumaletila told police that Woodward had said to him, “I managed to send them away, and no one got injured and they didn’t damage any of my property”.

Tracey Hutton^[31]

67. [67]
    On 6 July 2018, when Ms Hutton was in Longreach for her aunt’s 90th birthday, she spoke to Woodward on the telephone.  Woodward told Ms Hutton that the appellant and a couple of his mates were at his house threatening to bash him.  Ms Hutton told him to call the police.  She could hear loud male voices yelling in the background, but could not recognise the voices or how many there were.  Woodward said that he would call his father to come and pick him up.
68. [68]
    There was a 28 second call to Ms Hutton’s husband’s phone from Woodward an hour earlier.  The second call, mentioned in paragraph [67] above, lasted for 10 minutes.  A lot more would have been said during the 10 minutes then what Hutton had outlined, but she could not recall anything else.

John Woodward^[32]

69. [69]
    John Woodward was the deceased’s father.  His son lived alone at Rocklea with his two dogs.  Mr Woodward would see his son three to five times a year.  In July 2018, Mr Woodward picked his son up from his home in Rocklea, and took him back to his house in Strathpine.  Woodward had called his father the night before and earlier that morning.  In the conversation the evening before, Woodward had told his father that he was getting threatened by “some fella”.  Both Woodward and his father had been drinking.  The next morning, Woodward called his father again and told him that he wanted to be picked up as he did not feel safe at home.  The name of the person threatening to bring their mates down and bash him was Levi (the appellant).  The evening before, Woodward did not seem too upset.  However, when Woodward asked to be picked up the next day, he seemed more agitated.  Woodward did not really mention the incident again.
70. [70]
    The conversation on the Friday night before Mr Woodward picked his son up could have just been via text message.  Woodward did not mention being threatened in those messages and only mentioned it the next day.  When his son called the next morning, it sounded like he had had a few drinks but he was not drunk.

Prior incidents involving the appellant and Woodward

71. [71]
    Some witnesses gave evidence about interactions between Woodward and the appellant or involving Woodward.

Incident on 5 May 2017

Mackenzie Siglin^[33]

72. [72]
    On 5 May 2017, Mackenzie (the appellant’s half-sister) was at the club with the appellant, Joanne, and a group of friends.  They closed the bar and the appellant was counting up the tills.  They had a drink together and Woodward was still there after close.  Joanne went out for a smoke.  Mackenzie turned around as she heard a scuffle, and saw that Woodward had Joanne in a headlock.
73. [73]
    Mackenzie yelled for the appellant to help.  The appellant went out and said, “[t]hat’s my mum” and “[s]he’s a grandmother”.  The appellant then asked Woodward if he would like a cigarette.  Woodward then released Joanne and left the smokers’ area.
74. [74]
    The group then went down the stairs to leave the club and were locking the front door when Woodward went to swing a hit at one of the people in the group.  The appellant diffused the situation and said, “[h]ey man, come on.  We’re not fighting”.  There were no previous issues, other than Woodward had made some comments about Mackenzie’s friends along the lines of “[w]hat are these people doing in – in my club” and “these are strangers.  They shouldn’t be here”.
75. [75]
    The appellant offered Woodward a lift home.  The appellant had his roommate’s car at the time.  The appellant sat with Woodward while he had a cigarette.  But Woodward responded “[n]ah, you know, fuck you guys”, and started walking home.  As the appellant, Joanne, and Mackenzie left in the car, Woodward walked into the middle of the road, ripped his shirt off and started saying “[c]ome on, come out ... let’s fight”.  They locked the doors and swerved around Woodward, and he kicked the passenger side door.
76. [76]
    When Woodward was in the middle of the road he was also saying “run over me”, “[r]un me down.  Do it”.  After that, Mackenzie was aware of Woodward sending text messages and that the incident was run by the board, but Woodward was not banned from the club at that time.
77. [77]
    Mackenzie also said that she had made complaints about Woodward’s behaviour in the past.  On one occasion, Woodward had thrown a napkin at her when she was carrying glasses causing her to drop them.  Mackenzie said that every time she made a complaint to the club, she was told that Woodward drinks expensive drinks so they could not ban him.
78. [78]
    Mackenzie had also received text messages from Woodward but she just blocked his number.  She knew that Woodward had been banned from the club for sending messages to another waitress, Sarah Wilson.

Joanne Siglin^[34]

79. [79]
    On 5 May 2017, Joanne (the appellant’s mother) was working at the club.  There were some other people from another pub drinking there who were either her friends or acquaintances.  Woodward was there “circling” around, trying to start fights with the boys that were in the group.  The group were some of the last people left at the club.  Joanne said that, as they were leaving, Woodward tried to hit the designated driver of the group, and she grabbed him in the throat area to push him back.
80. [80]
    Joanne said Woodward was shocked and then put up his hand as if to hit her and, at this point, the appellant moved Woodward out of the way, by pulling or pushing him, for her safety and to diffuse the situation.
81. [81]
    The appellant then asked if Woodward would like a ride home or a cigarette.  They then got in their car, which belonged to the appellant’s housemate, Zoe Banks.  As they were driving off, they saw Woodward standing on the road.  He had been kicking fence palings and throwing rubbish bins up the street.  When they approached Woodward in the car, he kicked the car.
82. [82]
    After the incident on 5 May 2017, Joanne received messages from Woodward.  One said “9 Galah Street, Rocklea – send all your friends around to fuck me up”.  Joanne knew this was Woodward’s home address.  Woodward said: “Now think what you’ve said to me tonight.  Now think what I’ll do.  Am I crazy or not?”.  Joanne had been angry and had told Woodward that he was being a bully for picking on kids, and that he was weak for doing that.  The messages were tendered as Exhibit 14.
83. [83]
    Woodward had “manhandled” Joanne that night; at one point on the verandah, he had her in a headlock.  Joanne thought Woodward was roughhousing, but he was a bit rough.  She did not know if it was nasty.  The incident was reported to the club board, but Woodward was not barred at that time.  Woodward had been barred a couple of times, but that did not have anything to do with her.  Joanne was aware, and told the appellant, that it was to do with inappropriate conduct with other bar staff.  This was raised at a staff meeting that the appellant was at with Fred Harvey.  What was brought up was that Woodward was being sexually inappropriate with one of the bar staff, Sarah Wilson.
84. [84]
    Joanne was aware that, in the months leading up to 24 August 2018, Woodward had been banned, but was not sure if he was still banned on that date.

Incident at the club on 9 March 2018

Nicholas Owen^[35]

85. [85]
    Owen observed an incident on 9 March 2018 between Woodward and David Morrison.  Morrison was trying to attack Woodward with a pool cue.  Morrison was accusing Woodward of kicking the door or the wall.  The appellant was not working at the time of the incident.  However, Owen spoke to the appellant about the incident, and also filled out an incident report.  The appellant told Owen “not to dog the boys, because David was his friend – and to tell the cops it was all [Woodward]”.^[36]

Adam Blake^[37]

86. [86]
    Blake was at the clubhouse on 9 March 2018 when there was an incident between Woodward and a man named David Morrison at the pool tables.  Blake tried to separate them, took Woodward to the ground, and that was the end of it.

Incident at the club on 6–7 July 2018

Nicholas Owen^[38]

87. [87]
    On 6 July 2018, the appellant, Woodward, and their respective friends were involved in an incident at the club.  The appellant’s friend, David Morrison, was yelling at Woodward and his friend Liu in the beer garden.  Owen said that Liu got worked up, and retaliated.  Liu and Morrison ended up on top of the stairs.  Owen and other people “broke it up”, and no punches were thrown.

Shane Brown (orange shirt)^[39]

88. [88]
    On 7 July 2018, Brown was in Melbourne.  Woodward called him to ask if Brown could come around to his house, because the appellant had phoned Woodward and said that he was coming over with some friends to bash him.  Woodward told Brown during this phone conversation that the appellant “might” be coming around to bash him.
89. [89]
    Brown told Woodward that he was heading to the airport and that when he arrived back, he would come over.  Brown sent Woodward a message later to see if he was all right and Woodward said that his father was picking him up.

Neville Reeves^[40]

90. [90]
    On 7 July 2018, Reeves received a phone call from Woodward who asked him for a phone number to apologise to a lady for the obscene language from the night before; the lady being Amanda Stollznow.  Woodward also said that a few of the boys and the appellant were “there to take him out”.  When Reeves asked what Woodward was doing now, Woodward said that he was sitting downstairs with his two dogs and a machete as he thought he had seen the appellant walk across the football field to his front gate and open the front gate.  One of the dogs barked, then the gate closed and Woodward did not see anyone.  Woodward called Reeves again later and said he had phoned Amanda and that everything was good.
91. [91]
    Under cross-examination, Reeves stated that Woodward had said that he “thought” he had seen the appellant walking towards his house.  When challenged with a statement that he had made to police, Reeves confirmed that Woodward had told him that the appellant was at his house.

Frederick Harvey^[41]

92. [92]
    Harvey said that, in 2017 and 2018, he was a volunteer at the football club, and that he would attend the club up to five days per week.  He would attend board meetings, but was not involved with banning people from the club.
93. [93]
    Harvey did not recall a meeting where it was raised that Woodward was sexually inappropriate to Sarah Wilson in the appellant’s presence.  There was a conversation regarding not calling the police, but rather trying to have things done in house.
94. [94]
    Gae Faulkner called Harvey about when Woodward’s ban ended, and he said Woodward would have to go to the board.  Whether Woodward was banned or had banned himself, he would have to go to the board before coming back.
95. [95]
    Woodward was banned because of an incident between him and David Morrison.  The appellant was not working on the night of the incident.  Harvey was not there on that night either.
96. [96]
    Harvey did not recall anything being raised about Woodward and Sarah Wilson, but did recall discussions with Joanne and Mackenzie.  There was a meeting in 2018 with them.

Evidence in relation to the purchase of the knife

97. [97]
    Evidence was given by Joanne and Mackenzie that a knife arrived in a package for the appellant prior to 24 August 2018.^[42]  Both gave evidence that one or both of them opened the package, photographed the contents, and sent the image to the appellant.^[43]  Joanne gave evidence that the appellant “got the knife when he was over at [her] place”.^[44]
98. [98]
    Gill gave evidence as to the appellant’s purchase of the knife used on 24 August 2018.^[45]  Gill said that, in the weeks prior to 24 August 2018, he communicated with the appellant through Facebook Messenger.  Screenshots of their conversation were tendered as Exhibit 13.  The messages were not about a knife the appellant had.
99. [99]
    The appellant had purchased a knife on Wish and had shown Gill a photo of it on his phone.  It was a trick knife.  The trick was knowing which side of the blade is sharp and which one is not, so you can do “all tricky looking things that seem very dangerous”.  There were demonstrations on YouTube.
100. [100]
     When the appellant had shown Gill the photo of the knife he had purchased on Wish, Gill said “that looks like a shitty, cheap one”, and told the appellant he had a similar one that he could sell to him.  Gill sold the appellant the knife for $30, left it at Joanne’s home on 1 August 2018, and collected the money from there.  Gill did not see the knife again.
101. [101]
     Gill saw the appellant a few weeks later.  Gill went to the appellant’s house, and the appellant showed Gill that he had learned to use his knife.  The appellant did this by spinning the knife around in his hand; it looked like the appellant knew how to use the knife.

Forensic evidence

102. [102]
     Dr Phillips (a forensic pathologist) gave evidence as to a number of matters including the wounds sustained by Woodward.
103. [103]
     Dr Phillips performed the autopsy.  She noted 34 injuries to Woodward’s body, to his head, neck, trunk, upper left limb, upper right limb, left lower limb, and right lower limb.  Of those injuries, 17 were classified as “sharp force injuries”.^[46]
104. [104]
     Dr Phillips said that 17 contacts with the knife did not mean there were 17 thrusts.  She said, “ ... the situation’s quite dynamic – so there’s movements of the deceased and movements of the other person – and those individual contacts can occur through any of those dynamic movements”.  It was not possible to say what minimum number of thrusts there had to have been.^[47]
105. [105]
     During the internal examination, Dr Phillips identified injuries to the veins and structures of the neck, lung, and pleural cavity.  She determined the cause of death to be multiple stab and incised wounds.^[48]
106. [106]
     Woodward was 180cm tall and weighed about 85kg.^[49]  His blood alcohol level was 0.175.^[50]
107. [107]
     The butterfly knife was 24.5cm in length with a 9.8cm blade.  The blade had a maximum width of 1.9cm.^[51]
108. [108]
     The fatal wound was injury No. 9.^[52]  It was a 23mm horizontal stab wound, which tracked downwards and to the left to a depth of at least 67mm.  The wound track extended from front to back, right to left and downwards for at least 38 millimetres where it transected the proximal left jugular vein and then entered the left thoracic cavity.^[53]  The jugular vein drains blood from the head.  In this instance, 1.25 litres of blood had drained into Woodward’s chest cavity, which combined with the penetration of his left lung to cause a partial collapse of that lung.^[54]  Moderate force was required,^[55] and Woodward would have survived for up to 30 minutes to an hour.^[56]
109. [109]
     The other injuries and wounds sustained by Woodward included:

     1. (a)
        six injuries to his right upper arm:

        1. No. 20 (involving upper arm and armpit, a 128mm incised wound, moderate force, slicing action);^[57]
        2. No. 23 (a 16mm oblique stab wound, 34mm deep to the back top right of the arm, moderate thrusting force);^[58]
        3. No. 25 (posterior arm pit, near the tip of his shoulder, 25mm to a depth of 46mm, moderate thrusting force);^[59]
        4. No. 26 (back of right arm, inverted V-shape incised wound, 142mm by 62mm with a depth of 85mm, caused by a downwards movement along the inside of the arm, with moderate force);^[60]
        5. No. 27 (back of the elbow, 15mm downwards oblique stab wound with a total length of 56mm, a depth of 51mm, and damage to the underlying bone caused by severe force);^[61] and
        6. No. 24 (a perforating stab wound with a 62 mm entry wound extending upwards 31mm, and a 21mm exit wound, near the tip of the right shoulder requiring moderate force);^[62]
     2. (b)
        five facial injuries:

        1. No. 4 (right lower cheek, 27mm oblique wound penetrating through the cheek and upper gum and damaging the underlyingly maxillary bone, 24mm long and requiring severe thrusting force);^[63]
        2. No. 1 (right lower forehead, 35mm oblique incised wound, 6mm deep);^[64]
        3. No. 2 (upper mid-right eyebrow, 5mm abrasion);^[65]
        4. No. 3 (3mm linear abrasion to the right upper eyelid);^[66] and
        5. No. 5 (34mm vertical curvy linear incised wound to the mid-right cheek);^[67]
     3. (c)
        four neck injuries:

        1. No. 7 (right upper neck, 152mm downwards oblique incised wound, 17mm deep requiring moderate slicing force);^[68]
        2. No. 8 (39mm oblique incised wound which intersects injury No. 7);^[69]
        3. No. 9 (the fatal injury discussed above);
        4. No. 10 (left upper neck to earlobe, 32mm horizontal stab wound with a depth of 76mm, requiring moderate force);^[70]
     4. (d)
        mid left scalp behind the ear, injury No. 6 (55mm x 45mm raised bruise and 35mm x 15mm abrasion); consistent with Woodward’s head coming into contact with the ground in a fall;^[71]
     5. (e)
        left mid shoulder, injury No. 11 (horizontal incised or stab wound, 28mm long and 24mm deep, causing damage to the underlying left clavicle bone, requiring severe thrusting force);^[72]
     6. (f)
        upper right chest, injury No. 12 (96mm linear abrasion);^[73]
     7. (g)
        upper right back, injury No. 13 (35mm x 30mm abraded red bruise);^[74]
     8. (h)
        left upper arm, injury No. 14 (70mm curvy liner abrasion);^[75] and
     9. (i)
        palm of the right hand, injury No. 21 (31mm horizontal curvilinear incised wound to a depth of 6mm, typical of a defence wound, often caused by attempting to grab a knife or push it way).^[76]

Police evidence

110. [110]
     Eight police officers gave evidence.  Several were officers who attended the scene on 24 August 2018.  These attending officers took statements and photographs, and collected samples for testing.^[77]  They later produced information from this data, including floor plans and a panorama presentation.  Three were scenes of crime officers who located and tested evidence such as: (i) an empty Canadian Club bottle against a retaining wall; (ii) the appellant’s knife, found in a drain; and (iii) bloodstains.^[78]  Others were involved in searching for and locating the appellant on 24 August 2018.  They described his condition and took a statement and DNA samples from him.^[79]

Events on the night of 24 August 2018

111. [111]
     A total of 17 witnesses gave evidence of the events on 24 August 2018.^[80]  Their evidence covered the events inside the clubhouse leading up to the appellant and Woodward going outside, and then what happened in the street outside.  In addition, CCTV footage from various cameras inside the club and on the balcony was tendered: Exhibit 15.

Nicholas Owen^[81]

112. [112]
     Owen was working at the club in the upstairs bar.  Owen saw Woodward at the club at 5.05 pm after he received a text message from Mackenzie (the appellant’s half-sister).  Owen then viewed Woodward on the security screen monitors.  As a result, Owen sent a text to Liu and spoke to Tracey Neil (the head chef).
113. [113]
     Owen saw the appellant in the beer garden between 6 pm and 7 pm with Blake and a man he had not seen before who (he believed) was called AJ.  By CCTV footage at 7.45 pm, Owen identified Chris Neil, Hiku, Brown, Blake, the appellant, Colin Hutton, and Liu as being present.
114. [114]
     CCTV footage showed Owen serving the appellant at the bar.  The appellant said to him: “If the cops get called, we’re mates, yeah?  Have my back.  We’re mates”.^[82]  Owen said that the appellant was “in [his] face and moving his hands a lot, which [he] thought was out of character”.^[83]  He did not see the appellant inside the club again.
115. [115]
     Later, Owen was behind the bar when Haukunimi came up to him and told him something.  Owen said that he then ran towards the outside stairs and down them, and that he tapped Chris Neil on the way.^[84]  Owen identified himself and Neil on the CCTV footage walking down the stairs that lead out to the street that the clubhouse is on.^[85]
116. [116]
     When Owen got out onto the street, he saw the appellant on one side of the single lane road outside the clubhouse and Woodward on the other.  They were facing each other and were approximately five metres apart.^[86]  Owen was standing next to Blake, and Chris Neil was standing next to the appellant.^[87]
117. [117]
     Owen saw a Canadian Club bottle (that he had served the appellant earlier in the night) in the appellant’s hand.  Chris Neil said, “[d]rop the bottle, drop the bottle”.  The appellant said: “You want me to drop the bottle?”, and then threw it to one side.^[88]  Owen did not see anything in Woodward’s hand.  Owen said that Woodward was focussed on the appellant.  Owen heard the appellant say, “[c]ome on.  Come on”, and saw the appellant walking down the road towards Tramore Street.  After that, Owen said to Woodward: “[w]alk away.  Come with me.  Just come inside”.  While the appellant was walking, he said: “I don’t want to punch on.  I want to hurt you”, and “[c]ome so I can hurt you” or “[c]ome and let me hurt you”.^[89]
118. [118]
     Owen said to the appellant: “Mate, just drop it.  Go away and leave it”, and the appellant responded, “[i]f he had disrespected your mum and sister, wouldn’t you want to hurt them too?”.^[90]
119. [119]
     Owen said that he then said to Woodward: “You’re a bigger man than [the appellant].  You’ve walked away before, just do it again.  Come with me”.  Owen said he heard Woodward say: “I’m not a bigger man”.^[91]
120. [120]
     Owen spoke to Woodward twice, trying to persuade him to turn around.^[92]  A couple of times, Woodward turned his head as if he was about to turn around, but never did.^[93]
121. [121]
     “[A]fter a little while of being enticed”, Woodward started to follow the appellant at walking pace.^[94]  At first, Owen stood there to see what was happening, and, as Woodward started getting closer to the appellant, Liu came around the corner.  Owen grabbed Liu as he did not want him to get involved.^[95]  Owen grabbed Liu by his back, Liu resisted, so Owen got in front of him and started pushing him back towards the clubhouse.^[96]
122. [122]
     Owen was initially successful; however, Liu then got away and, by that time, the fight had already broken out.^[97]  Owen said that, while he was struggling with Liu, all his attention was on Liu, and he could not hear any background noise.
123. [123]
     Owen then started approaching towards the fight.  He saw Woodward throw the appellant into the fence.^[98]  Owen thought that, prior to that, Woodward and the appellant had each other by the shirt.  Owen described this part of the altercation as a “standing up wrestle”.^[99]  When the appellant was thrown into the fence, Owen was about three metres away with an unobstructed view; it was dark but well-lit by streetlights; the appellant and Woodward were moving to the left, holding each other; when Woodward threw the appellant into the fence, he had the appellant by the shirt.^[100]
124. [124]
     After the appellant hit the fence, he was then on the ground, on his back on the grass with his head towards Tramore Street, parallel to the fence.  Woodward was kneeling astride the appellant’s body at his hips or waist, with his knees on the grass.  Woodward had the appellant’s shirt in his left hand, and was hitting the appellant’s head with his right hand in a fist.  Owen saw “[a]bout three” blows connect with the appellant’s head.  The appellant’s upper body and head were leaning up a bit, with his bottom and legs planted on the ground.^[101]
125. [125]
     The momentum of Woodward’s punches changed, starting to slow down.  The second one was slow and the third really slow.^[102]
126. [126]
     While Woodward was striking the appellant, Owen saw the appellant hitting Woodward with a “roundhouse action closed fist towards [Woodward’s] neck”.^[103]  The appellant appeared to be aiming blows at Woodward’s neck.  It was a swinging motion – more like a stabbing action – which Owen saw the appellant do about five times.  The appellant was striking Woodward very quickly, and Owen did not see anything in the appellant’s hand.  Owen was about three metres away at the time.^[104]
127. [127]
     From the point Owen first noticed the appellant and Woodward fighting to when they were on the ground would have been 15 to 20 seconds.  The men were on the ground for about 10 seconds.^[105]
128. [128]
     Owen saw someone pulling Woodward off the appellant.  The person was wearing a yellow high-vis shirt, and Owen thought it might have been Liu.  Owen then saw Chris Neil grab Woodward, Woodward took a couple of steps back, his eyes rolled back, and he collapsed into Chris Neil’s arms.^[106]
129. [129]
     It took a couple of seconds to notice Woodward was injured.  The appellant was covered in blood, which Owen first thought was the appellant’s.^[107]
130. [130]
     Owen saw the appellant get up and run towards the bridge.  Owen was unaware of what happened to him after that.
131. [131]
     Owen had not drunk any alcohol that night.
132. [132]
     During cross-examination, Owen accepted that he and the other witnesses sat around for about an hour and a-half waiting for police, and that they spoke about the incident a “[l]ittle bit”.  Owen accepted that the punches he saw Woodward inflict on the appellant while straddling him were “hard punches”, that he could hear the connection, and that he was very worried that the appellant would end up being seriously hurt.^[108]

Sydney Liu Liu^[109]

133. [133]
     Liu was in the area of the club with the pool tables when Woodward and his friends, along with the appellant and his friends, were playing pool.
134. [134]
     Liu heard the appellant being sarcastic to Woodward, and Woodward was trying to ignore it.  Once, when Liu walked to the toilet, he told the appellant to “just leave it”.
135. [135]
     At one time, while Liu was at the bar with the appellant and Owen, the appellant told Liu to “pick a side”; “he asked me to pick a side … if they got into a fight – if it was his side or not”.^[110]
136. [136]
     Liu had a cigarette with Woodward at one point in the night in the beer garden.  At this time, the appellant was yelling stuff to Woodward, “calling him the [sic] pussy and that”.^[111]  Only the appellant was yelling at Woodward.^[112]  Liu told Woodward to ignore it, and Woodward did.^[113]
137. [137]
     At approximately 9 pm, Liu saw Woodward and the appellant on the road outside the club, with Woodward standing on one side of the road facing towards the football field, and the appellant facing towards the clubhouse.^[114]  Liu was at the top of the side stairs at the time, and said the appellant and Woodward were 10 to 20 metres apart.^[115]  Liu then walked out onto the street to see what was happening.  Once Liu was on the road, he saw Hiku and Joshua in the same area.  The appellant and Woodward were swearing at each other, and the appellant was asking Woodward to follow him down the road.^[116]  Woodward followed.
138. [138]
     In his police statement, Liu had said the appellant had gestured with his right hand for Woodward to follow him, that the appellant had started to shape up to Woodward, and had then thrown a right hook.  Liu could not see anything in his right hand.^[117]
139. [139]
     Woodward pushed the appellant first and the appellant pushed him back.^[118]  The appellant went to throw a punch and missed.  Woodward then threw a punch which landed on the appellant’s chin.  At this time, Liu saw what he thought was an empty glass bottle in the appellant’s hand; however, Liu said that, after that, the bottle was gone.  Liu assumed the appellant threw it away.^[119]
140. [140]
     After that, the appellant and Woodward had moved further down the road towards the bridge.  They then threw further punches before Woodward pushed the appellant against the fence and then pushed him to the ground.^[120]  They were fighting for three to four minutes before this.^[121]
141. [141]
     The appellant was lying on his back on the grass trying to defend himself, while Woodward punched him while on top of him.  Woodward and the appellant were exchanging punches; Woodward delivered probably six punches, all of which connected with the appellant’s face.  The appellant punched towards Woodward’s neck twice.^[122]  The appellant’s punches connected.^[123]  Woodward had his knees on either side of the appellant’s body in the region of his stomach.^[124]  In cross-examination, Liu admitted that Woodward was punching the appellant to the head, and that they were hard punches.^[125]  The appellant was using the thumb and index finger of his hand, rather than his knuckles to hit Woodward.^[126]  Woodward’s punches got slower.^[127]
142. [142]
     Liu grabbed Woodward twice to get him off the appellant.  Liu lost his grip the first time, then grabbed Woodward a second time and pulled him off.  Woodward then collapsed on the road.  When Liu looked at the appellant, he saw he had a knife in the appellant’s hand, and the appellant told Liu that he would do the same thing to Liu if he came any closer.^[128]  There was no fighting between Woodward and the appellant between the appellant hitting him twice and Liu pulling Woodward off.^[129]
143. [143]
     The appellant was still on the ground when Liu saw he had a knife.  The appellant “took off with Adam [Blake], his mate”, towards the train station under the bridge.^[130]
144. [144]
     Liu was right next to the appellant and Woodward when they were fighting, about two metres away.  Liu was “trying to pull him off”, and there were other people trying to stop the fight too, including “James” [Haukinimi] and “Chris” [Neil].  Liu also saw Owen there trying to stop the fight, along with “Adam” [Blake], who was “at the back” of the appellant, and was also trying to stop the fight.^[131]
145. [145]
     During cross-examination, Liu admitted that, after the fight, he went back to the club with others who had witnessed the fight, and they spoke about what had occurred for about an hour and a half before the police arrived.^[132]
146. [146]
     Liu further said that he saw Woodward “like family” and that he “regarded him as an uncle”.^[133]  Liu said that he was aware that Woodward had been banned from the club for a two-month period in April that year.  Liu further accepted that there was a point during the altercation when he saw the appellant backing away from Woodward when they were down the road from the club; that Owen had tried to hold Liu back because Owen thought Liu was going to fight, but Liu was trying to stop the fight; and that he stopped Blake from getting involved in the fight by dragging him back.^[134]

Semisi Haukinimi (James)^[135]

147. [147]
     Haukinimi arrived at the club on 24 August 2018 at approximately 6.30 pm.  Haukinimi knew both the appellant and Woodward.  He was not friends with either the appellant or Woodward, and had never had a problem with either of them.^[136]  Haukinimi was sitting in the pool table area of the club with Liu.  He saw Woodward and a friend playing pool and, at the other table, the appellant was playing pool with Blake and Hiku.  The appellant was giving Woodward “a bit of cheek”.  Woodward did not react, but one of the people Woodward was with tried to tell the appellant to stop it, as did Liu.^[137]
148. [148]
     The appellant was arguing and bickering and this interaction went on for a minute at most.^[138]
149. [149]
     Haukinimi spoke to the appellant in the smoking area on the verandah of the club; Liu and Josh [Stollznow] were also there.  Haukinimi went out to the front verandah for a cigarette.  Haukinimi described his conversation with the appellant in the following way:^[139]

“He told me that he was moving back to Newcastle.  He has a daughter there, I believe he said, and that it was his birthday the following day, and before he – he said before he was going to go back to Newcastle, that he wanted to hurt [Woodward], but he couldn’t fight him.  He had a bad shoulder and that he needed a reconstruction on his shoulder.  He said that – he – that he would just stab him, that he would go to his house before he left to Newcastle, and be smart about it or something, and I can’t remember the rest of the conversation.”

150. [150]
     Haukinimi shrugged and did not take it seriously because he had heard similar things from the appellant before.^[140]  He could remember two occasions a few weeks before.^[141]
151. [151]
     Haukinimi later heard Woodward say to Liu that the appellant was going to go out the front, and was waiting for Woodward to fight.  Woodward told Liu that the appellant had a glass bottle with him:^[142]

“And I think [Woodward] told [Liu] that he had a glass bottle with him, or something like that.  Along the lines of that.”

152. [152]
     Haukinimi then saw Woodward go down the stairs.  Haukinimi went to Owen (behind the bar) and told Owen that he thought Woodward and the appellant were going to fight outside.^[143]
153. [153]
     Haukinimi went out onto the verandah and saw the appellant, with his friend Blake, walking backwards down the road and calling for Woodward to “[c]ome down here.  Come”.  The appellant was the only one speaking.  Woodward was standing still, and Liu and Owen were telling him not to go.^[144]  The appellant and Woodward were in the middle of the street, Liu was on the footpath, and Owen was beside Woodward.  The cook was a bit behind Woodward, “sort of on the gutter”.^[145]  Woodward was hesitant, but followed the appellant and his friend.^[146]
154. [154]
     Haukinimi then went through the side entrance and out the front of the clubhouse.  When Haukinimi got outside, he saw the appellant and Woodward fighting in the middle of the road.^[147]
155. [155]
     The appellant and Mr Woodward were exchanging punches in the middle of the road.  They each landed about five punches to the other’s head.^[148]  The appellant started stumbling backwards.^[149]  The appellant’s hands were down, and they were making their way towards the fence.^[150]  When the appellant stumbled back, his right arm was at his side near his pocket, and his left arm was up guarding his face.^[151]  The appellant stumbled back some distance, from the middle of the road towards the black fence.^[152]  Woodward knocked the appellant down beside the fence (by striking him to the head with a punch),^[153] and was on top of the appellant, striking him.^[154]  The appellant was on the grass with his head closest to Tramore Street.^[155]
156. [156]
     Woodward had his legs over the appellant’s stomach, and his knees were touching the ground.  Woodward and the appellant were exchanging punches; Woodward was hitting the appellant’s head, and the appellant was hitting Woodward’s “upper chest”.^[156]  Haukinimi was directly behind Woodward, so he could not describe the appellant’s punches, his striking motions, or how many punches; and similarly as regards Woodward.^[157]
157. [157]
     The appellant was covered in blood, and Haukinimi grabbed Woodward under the armpits and pulled him off.  Woodward stumbled back towards the middle of the road.  The “cook” (Chris Neil) grabbed Woodward, who then collapsed.^[158]  When Haukinimi saw the appellant stand up, he noticed the knife in the appellant’s hand, and the appellant was saying “[i]s that all you've got”.^[159]  It was a butterfly knife.^[160]
158. [158]
     The appellant then started walking backwards to get away.  Liu had pinned Blake to the ground.  The appellant pulled the knife out to threaten Liu, and told Liu to get off Blake.  The appellant said, “I don’t want to hurt you.  Just let him go”.^[161]  The appellant and Blake then ran off in the direction of the bridge.  Haukinimi performed CPR on Woodward until the paramedics arrived.
159. [159]
     Haukinimi said he was less than half a metre away when he observed the fight, behind Blake and that the lighting was poor.^[162]
160. [160]
     What Haukinimi witnessed was volatile and happened very quickly and, as such, the interaction wasn’t easy to describe.  Haukinimi also accepted that, after the fight, everyone went back to the clubhouse to wait for police, that they were there for a fair amount of time, and that everyone was talking about what happened.
161. [161]
     During the conversation where the appellant said he was going to stab Woodward, the appellant was laughing.  Haukinimi did not take it seriously, and did not mention it to Woodward, even when Woodward told him that the appellant was downstairs wanting to fight him with a bottle.^[163]  Haukinimi also did not mention the conversation to Owen when he told him there might be trouble outside; nor did he tell the police when they arrived.^[164]
162. [162]
     Haukinimi accepted the appellant was intoxicated, that Woodward’s pride was on the table because he had been called out by the appellant, and that Woodward wasn’t going to back down.^[165]  That started at the pool table when the appellant said something smart to Woodward, and Woodward’s mates got “aggro” towards the appellant.^[166]

Adam Blake^[167]

163. [163]
     Blake was the appellant’s friend.  As at 24 August 2018, he was living with the appellant, and had known him for about two years.
164. [164]
     On the night of 24 August 2018, Blake and the appellant were pre-drinking bourbon and coke (not premixed), and Blake estimated that he had two drinks.  The appellant had started drinking at the same time as Blake.  They also smoked a joint of cannabis or two.  They had a drink in the downstairs bar when they arrived at the club, and there was an interaction between the appellant and Woodward at this time.^[168]
165. [165]
     Blake was playing a game of pool with Hiku while the appellant watched.  There were other people that Blake did not know playing pool on the other table, and Woodward was with them.  There were some words exchanged between the groups later in the night, but Blake could not remember what was said and he stayed out of the conversation.^[169]
166. [166]
     Blake was on the balcony in the smoker’s area at another point in the night with the appellant and Hiku.  Woodward came out to the area.  The appellant and Woodward spoke to each other, but Blake could not recall what was said between them.^[170]  Blake thought he stayed on the balcony for the rest of the night until he went downstairs for the fight.
167. [167]
     Later, Blake walked down the internal stairs out to the front of the clubhouse where he saw Woodward and the appellant arguing on either side of the street.^[171]  More people came out of the clubhouse, and the argument continued for somewhere between five to 20 minutes.^[172]  The appellant then moved away towards the train line, and Woodward followed.^[173]  Blake followed the appellant and called out to him saying they should get an Uber.^[174]  At some point, Hiku handed the appellant’s wallet to Blake.
168. [168]
     As Blake moved towards the appellant, Woodward rushed past him towards the appellant and hit the appellant in the face.^[175]
169. [169]
     The appellant and Woodward grabbed each other and Blake “believes” they both went to the ground.^[176]  Woodward was on top.^[177]  Mr Blake was being pushed away at that point.  Blake was grabbed from behind, thrown to the ground, and did not see what happened between the appellant and Woodward.  The last thing Blake saw in the brief moment was Woodward punching from the top down; Woodward was on top of the appellant, hitting him.  Blake saw them on the ground.  It would have been a struggle; the appellant would have been trying to throw Woodward off him, and Woodward would have been trying to hold him there.^[178]
170. [170]
     Liu then grabbed Blake from behind, and threw him to the ground.  Blake was dragged further down the street.  Liu also said that he wanted to fight Blake.  Blake did not see anything further happen between Woodward and the appellant.^[179]
171. [171]
     Blake thought Liu got off him when someone yelled “ambulance”.  Liu walked away from Blake, and Blake saw Woodward and the appellant already standing.  He did not physically see them stand up.^[180]  They both appeared disorientated and bleeding.^[181]  The appellant walked past him and left towards the overpass.  After 20 or 30 seconds, Blake started to follow the appellant.  Blake followed the appellant at a distance of about 100 metres until he lost sight of him.^[182]
172. [172]
     In the conversation between the appellant and Woodward on the balcony, the appellant said words to the effect of “I don’t care if you’ve got a problem with me.  Just leave my mum and sister out of it”.  In cross-examination, it was put to Blake that, when speaking to police the next day, he remembered hearing the appellant say that to Woodward.  After the quoted phrase was read to him, Blake agreed that he remembered something roughly of that sort being said.^[183]  Blake recalled the appellant having an issue with his shoulder.^[184]  Blake recalled that he had physically taped the appellant’s shoulder for him in the days leading up to incident, and that the appellant had been wearing a sling.^[185]
173. [173]
     While playing pool, the appellant had clapped at Woodward and said “good shot”.^[186]  There had been a conversation between the appellant, a man in an orange shirt (Brown), and a man in a yellow shirt (Hutton) that was “a little bit heated”.^[187]  At some point, Blake turned to the other table and said words to the effect of “[e]verybody’s said what they wanted to say.  Let’s leave it at that, and have a good night”.^[188]  Blake accepted that his statement contained something along the lines of the appellant having said “good shot” and clapping while Woodward and the appellant were eyeballing each other.^[189]  Blake did not directly remember what was happening – even after viewing CCTV footage of events at the pool tables – but he did recall the appellant said, “[g]ood shot” and clapped.^[190]
174. [174]
     At a point in time (shown in the CCTV footage), the appellant offered those at the other pool table some pizza he had purchased.  Blake assumed the appellant was offering everyone pizza because that is what the security video played to him in the witness box appeared to show.^[191]  The man in the orange shirt and the man in the yellow shirt were “quite aggressive”; they would not leave the area, and “[w]anted to ...  continue the argument”.  The appellant kept saying that it was his birthday, he wanted to have a good night, and “he didn’t want drama”.^[192]
175. [175]
     There was a point in the CCTV footage where the appellant and Blake were spoken to by the cook (Neil).  Blake recalled Neil telling the groups to move away from each other; to separate so it did not escalate any further.
176. [176]
     Blake did not recall the appellant saying words to the effect of “[c]ome on.  Come on” when he was outside the clubhouse with Woodward.^[193]
177. [177]
     On a date prior to the offence, Blake was with the appellant at Acacia Ridge McDonald’s when the appellant received a phone call from Woodward.  Blake did not remember the conversation between the appellant and Woodward being put on speaker phone.^[194]  Blake remembered hearing Woodward saying something to the effect of “[y]ou know where I live”.^[195]  When asked how he heard that, Blake responded that “[i]f I’ve heard anything, it was probably on speaker then, yeah.  I was wrong with my first statement”.^[196]  Blake remembered being in his car in the McDonald’s area.^[197]
178. [178]
     Blake did not see the appellant with a butterfly knife at any point on the evening of 24 August 2018.^[198]

Akutaina-Hohepa Hiku (AJ)^[199]

179. [179]
     Hiku was at the Football club on the night of 24 August 2018.  Hiku saw the appellant there with one of his friends, Blake.  He had known the appellant for approximately six months and also knew of Woodward.
180. [180]
     Hiku struggled to remember details.^[200]
181. [181]
     Hiku was playing pool with Blake that night and Woodward was in the pool room.^[201]  There was a “bit of bickering” and “sarcasm” between the tables,^[202] with the sarcasm coming from the appellant.^[203]  Woodward took a shot, and the appellant clapped his hands and said “good shot.  You almost got it”.^[204]  The appellant said that he did not want any trouble, that he was celebrating his birthday, and “[t]here's a camera up there – ‘I just don't want any trouble’”.^[205]
182. [182]
     After playing pool, Hiku went to the smoking area balcony for a cigarette with Blake and the appellant.  Woodward came out and spoke to the appellant, and the appellant told Woodward that he wanted an apology.  Woodward responded that he had apologised to the appellant’s mother and sister.^[206]  The appellant said to Woodward, “I'll have a chat downstairs”.^[207]  After that, Hiku saw the appellant leave the smoking area and Woodward followed.
183. [183]
     Hiku saw the altercation between the appellant and Woodward outside the clubhouse.  The appellant and Woodward were arguing, and Hiku saw the appellant walking away up the road.^[208]  Hiku said that Woodward kept “walking up” towards the appellant.  The appellant turned around and started waking back.  At some point, Woodward and the appellant walked towards each other, and met “somewhere in the middle”.^[209]  Hiku was following Woodward at a distance of about four metres.^[210]  Woodward went to hit the appellant, the appellant ducked, and then Woodward and the appellant started punching each other.  The appellant stumbled back, and Woodward “jumped on and started fighting again” on the ground.^[211]  Woodward was on top of the appellant, with his knees on each side of the appellant’s waist.  Woodward’s knuckles were making contact with the appellant’s head.  Hiku said the appellant was using his arm to try and hold Woodward off and fight back.
184. [184]
     Hiku did not see where Woodward’s knuckles were making contact with the appellant’s head.  Woodward was “just holding [the appellant] down and punching him”.  Hiku saw the appellant and Woodward exchanging blows, but could not say how many other than that it was “more than one”.^[212]
185. [185]
     Woodward got up and stumbled back to the other side of the road where he collapsed.^[213]  The appellant stood up and was covered in blood.  Hiku went to the appellant and saw that the appellant had something in his hand.  Hiku described it as “[j]ust like a little flick knife thing”, but could not recall whether it was in fact a flick knife, or what hand it was in.^[214]  Hiku then asked the appellant “what have you done?  What the fuck?  What the fuck have you done”,^[215] and the appellant walked off.  Hiku went to help Woodward by trying to stop the bleeding and giving him CPR.^[216]
186. [186]
     Hiku and Blake had tried to stop the fight, but there were a number of people around who would not let them stop it.^[217]  Hiku did not recall Blake being taken to the ground.
187. [187]
     Everything happened quickly.  Woodward was the first one to hit.  The appellant quickly ended up on the ground, and then Woodward was on top of him punching him in the head.  The assault by Woodward on the appellant was a serious one; Hiku described the appellant as “getting his face smashed in” by Woodward.^[218]

Colin Hutton (yellow shirt)^[219]

188. [188]
     Hutton was at the football club on the night of 24 August 2018.  Hutton was a friend of Woodward, and had been since high school.  Hutton did not know the appellant prior to that night.
189. [189]
     Hutton was playing pool with Woodward and Brown,^[220] and the appellant started playing pool on the other table with his two mates.  The appellant came in, and immediately paid attention to Woodward.  The appellant would taunt Woodward if the latter missed a shot.^[221]  Hutton spoke to the appellant about his behaviour, but it continued.^[222]  The appellant kept niggling Woodward.^[223]
190. [190]
     When Woodward would miss a shot, the appellant would clap and say, “[g]reat shot”.^[224]  The appellant was “being a cock really”.  The appellant was talking loudly about Woodward, but Woodward was not responding.^[225]  Hutton said that it started getting out of hand; Hutton went over to the appellant, and told him that he was being ridiculous, and that they were there to play pool; “[l]eave it be”.^[226]
191. [191]
     Hutton told the appellant that he was “carrying on like a cockhead”, and “[t]here’s no need to try and start nothing.  You’re just trying to start a fight for no reason”.  The appellant got “real ... aggressive towards it”, kept saying it was his birthday,^[227] and spoke about his sister and his mother.^[228]  The appellant twice said “you don’t know what I’m capable of”.  The appellant later said to Hutton that he did not have a problem with him and that he only had a problem with Woodward.^[229]
192. [192]
     After the pool game, Hutton only saw Woodward in passing until he heard he had been injured (someone told him that he had been glassed),^[230] at which time Hutton walked outside and onto the street where he saw Woodward lying down on the road.^[231]  Hutton said he saw people giving Woodward CPR.
193. [193]
     Hutton said that he had consumed 10 to 12 schooners of beer during the course of the night, but that he was fine.^[232]

Shane Brown (orange shirt)^[233]

194. [194]
     Brown had known Woodward since they were 12.  He went to Woodward’s house on 24 August 2018.  They then went together to the football club.  Brown did not know the appellant at the time, but remembers people pointing the appellant out to him.  The appellant was with his friend Blake.  Brown saw the appellant walk up to Woodward when Woodward was waiting at the downstairs bar.  The appellant put his arm around Woodward and said something in his ear.^[234]  Woodward returned and told Brown that the appellant said to Woodward that he did not want to fight Woodward, but that his friend would.^[235]
195. [195]
     Brown said that he went with Woodward to the pool area.  The appellant, Blake, and another friend started playing pool on the other table.^[236]  Brown said that every time Woodward made a foul or bad shot, the appellant would say “[g]ood shot mate”.^[237]  Brown said that Woodward did not respond.
196. [196]
     Hutton approached the appellant and said words to the effect of “[j]ust stop.  You know, give it a rest ... [w]e’re just [here] to play pool”.^[238]  The appellant got aggressive towards Hutton, and Brown had to say “Piss off ... leave us alone.  We’re just here to play pool ... leave Adam alone”.^[239]  The appellant offered Brown some pizza and tried to shake his hand, but Brown was not interested.
197. [197]
     Brown had a conversation with Blake in the pool room, during which Brown asked Blake to tell the appellant to stop being such an idiot.  Blake responded saying it was just a “pissing contest between them two”, and Brown said it was “ridiculous.  Just tell him to stop”.^[240]
198. [198]
     Brown played a game of pool with Woodward, and then a game of pool with Hutton.  After the game with Hutton, Brown “went to the pokie area and ... grabbed [Woodward] and ... thought it was just time to leave”.  Brown thought they “just had to get out of [there]”.^[241]  Brown had a quick chat with Woodward and Hutton near the football field sideline.  Hutton “wanted to stay on”, so Woodward stayed with him.  Brown told Woodward, “[p]lease be careful”,^[242] and then walked back to Woodward’s place, and drove his car home.

Owen Kalisperis^[243]

199. [199]
     Kalisperis attended the football club on the night of 24 August 2018.  At about 8 pm, Kalisperis was on the balcony and had a conversation with the appellant.  The appellant was playing with a butterfly knife.^[244]  The appellant was doing some tricks with the knife, “flicking it around his hand”.^[245]
200. [200]
     The appellant showed Kalisperis a butterfly knife; when asked to describe the knife, Kalisperis said: “Like, assault knife with two handles that come around into ... one handle”.^[246]  It had a four-inch blade.^[247]  The appellant got the knife from a pocket or maybe a bag.^[248]  The appellant was “flicking it around his hand, doing some tricks and stuff” for maybe 10 seconds.^[249]  The appellant did not injure himself; he was handling the knife skilfully, as though he had been practising for a bit.^[250]
201. [201]
     Kalisperis was shown CCTV footage between 8.46.32 pm and 8.53.54 pm, and asked what the appellant was doing during that segment of footage when Kalisperis was in his company.  Kalisperis replied, “I can’t – no – just conversating [sic].  I’m not too sure about what”.^[251]  Kalisperis did not see the incident in the street.^[252]
202. [202]
     Kalisperis accepted during cross examination that, during the conversation with the appellant on the balcony, they had been watching a video on YouTube about a blacksmith making knives.  It was at that point that the appellant took out the knife and started doing tricks with it.^[253]  Kalisperis accepted that there was nothing sinister about what the appellant was doing with the knife.

Amanda Stollznow^[254]

203. [203]
     Ms Stollznow was at the club on 24 August 2018.  When she arrived, Stollznow saw Woodward in the downstairs bar, but not the appellant.  Later in the night, she saw the appellant and his friends playing pool on one pool table, and Woodward and his friends playing pool on another.
204. [204]
     The appellant was making “niggly” comments to Woodward.  Hutton and Brown both told the appellant to “cut it out”.  Woodward ignored the comments, and there was no issue with Woodward’s behaviour.
205. [205]
     Ms Sollznow said that she did not see the incident between Woodward and the appellant on the street.

Mackenzie Siglin^[255]

206. [206]
     Mackenzie was employed behind the bar at the football club.  The appellant is her half-brother, and he worked as a manager of the club between May 2017 and April 2018.  She first met Woodward in 2015 or 2016.
207. [207]
     On 24 August 2018, Mackenzie was working at the club.  She saw both Woodward and the appellant there that night.  She had spoken with the appellant earlier in the evening, and he had told her he was coming to the club.  During the phone conversation, Mackenzie had told the appellant that Woodward was there with some friends.^[256]
208. [208]
     When the appellant first arrived, Woodward and Neville Reeves were at the bar.  The appellant and Blake came to the bar, and the appellant asked Mackenzie whether Woodward and Reeves were harassing her.  She said No.  The appellant then asked if Woodward and Reeves would buy him a drink for his birthday, and Mackenzie said that she would.  She then bought the appellant a Jagerbomb and a Canadian Club.  The appellant then told her he was going to have a smoke.^[257]
209. [209]
     Owen was working the upstairs bar that night.  About 10 to 15 minutes before Mackenzie saw Owen running outside and her going behind the bar, the appellant came past and said “I love you”.^[258]  Mackenzie was sitting in the pokie area at the time.
210. [210]
     Mackenzie had a conversation earlier in the night with the appellant, during which the appellant said to her: “if the cops get called tonight, you know, have my back, sis”.^[259]  At that time, staff were under instruction from the club managers not to call the police as the club had a bad rap.
211. [211]
     A short time after going behind the bar, Mackenzie called the police.  She was in the clubhouse the entire time.^[260]
212. [212]
     Mackenzie identified the appellant’s knife (by photo), and said it had arrived in a package sent to her house a couple of weeks prior that was addressed to the appellant.^[261]  Mackenzie sent a message to the appellant to say the package had arrived, but did not see the knife again.
213. [213]
     During cross-examination, Mackenzie accepted that she saw Snapchat videos sent by the appellant of him doing tricks with the knife.  The appellant told her that he had been learning knife tricks on YouTube.^[262]

Neville Reeves^[263]

214. [214]
     Reeves was the president of the Football club.  Reeves first met Woodward in 1997 when Woodward was 13 years old; they were very good friends.  Reeves met the appellant in 2017 or 2018, and knew Joanne and Mackenzie.  Reeves was aware that Woodward and the appellant did not get on.
215. [215]
     On 24 August 2018, Reeves was at the club.  He did some jobs, then went to the downstairs bar for a drink with Woodward and some other people.  Reeves saw the appellant at that time.  The appellant came up to him and said “[b]uy me a drink, it's my birthday”; Reeves said, “[n]o problems, mate.  I’ll buy you a drink”.  Reeves turned to Mackenzie (who was behind the bar) who said not to worry as she would buy him one.  Reeves bought two drinks.  As Reeves was leaving the bar, he saw Woodward walk up and talk to the appellant, but Reeves walked away.  Reeves left the club at about 7.30 pm.
216. [216]
     Reeves said that he had seen Woodward interact on previous occasions with Mackenzie and Joanne, and that everything seemed to be normal.

John Hall-Leeke^[264]

217. [217]
     Hall-Leeke had known Woodward since childhood, and knew the appellant through the football club.  Hall-Leeke had heard that Woodward and the appellant did not get along, but had never witnessed anything.
218. [218]
     Hall-Leeke was at the club on 24 August 2018.  Hall-Leeke was drinking in the downstairs bar.  Brown and Woodward joined him.  Hall-Leeke saw the appellant there with Blake.  Not long after the appellant arrived, the appellant and Woodward had a conversation which seemed very amicable and did not last long.  During the conversation, the appellant’s hand was on Woodward’s shoulder, and the appellant appeared to be trying to shake Woodward’s hand.^[265]  Woodward came back to the table and said that he and the appellant had had a disagreement beforehand.  Woodward just wanted to make sure there was no trouble between them tonight, because they were just there to have a good time.^[266]  Hall-Leeke left the club at about 7.30 pm.
219. [219]
     Hall-Leeke had seen Woodward interact with Mackenzie and Joanne, and described Woodward’s behaviour as “just normal”.^[267]
220. [220]
     During cross-examination, Hall-Leeke accepted that he had made a statement to police at around 3 am.  The statement was read to him, and Hall-Leeke accepted that the statement described what Woodward had told Hall-Leeke of the conversation between Woodward and the appellant.  Woodward had said to the appellant: “You’re not here for trouble, are you?  If you are, we can just go outside and get it sorted”.  The appellant had replied, “[n]o, it’s my birthday.  I’m not here for trouble.  I’m just here for a drink”.^[268]  Hall-Leeke also accepted that Woodward walked up the appellant as soon as the appellant arrived at the club.^[269]

Lachlan Reeves^[270]

221. [221]
     Lachlan Reeves is the son of Neville Reeves.  He knew both Woodward and the appellant.  He attended the club on 24 August 2018, and socialised with both Woodward and the appellant.
222. [222]
     The appellant showed him a butterfly knife that he got off Wish.^[271]  The appellant got the knife from his pocket and was “dicking around, throwing it [in] the air and catching it”.^[272]  During cross-examination, Reeves accepted that the appellant was doing tricks with the knife, and it was the sort of knife you could do tricks with.^[273]
223. [223]
     Woodward told Reeves about an incident between Woodward and the appellant.  Woodward had said that he was ready to have a fight with the appellant and had walked across the football field, but nothing had happened.  Woodward told him that there had been text messages between the pair, and that Woodward had sent a message to the appellant saying: “I don’t care.  I fucked your sister anyway.  She’s the club slut”.^[274]

Penisimani Militoni^[275]

224. [224]
     Militoni knew both Woodward and the appellant.  Militoni was at the club on 24 August 2018, socialising with Lachlan Reeves.  Militoni said that he was there when the appellant showed Lachlan Reeves the knife, which he described as like a little pocket-knife.^[276]  Militoni said the appellant was just playing with the knife.

Gail Anne Fitzpatrick^[277]

225. [225]
     Fitzpatrick was employed at the football club as a bartender.  Fitzpatrick knew both Woodward and the appellant.  Fitzpatrick did not know Woodward well.  Fitzpatrick knew the appellant and Woodward did not get along, but had not witnessed any verbal or physical arguments between them.^[278]
226. [226]
     Fitzpatrick was working behind the bar upstairs between 6 pm and 8 pm on the night of the incident.  She saw both Woodward and the appellant during this time.^[279]  When Fitzpatrick finished her shift at 8 pm, she had a drink with the appellant.  They had a conversation about Woodward, and she told the appellant not to worry as Woodward had gone home (Fitzpatrick thought Woodward had left because she had served him a “takeaway drink”).  The appellant responded: “Yes, but I know where he lives”.^[280]
227. [227]
     In cross-examination, Fitzpatrick accepted that she was friends with the appellant and when they had the conversation on 24 August 2018 it was obvious that he was intoxicated.^[281]

Tracey Hutton^[282]

228. [228]
     Ms Hutton had known Woodward since he was a child as he had gone to school with her son, Colin Hutton.  She knew the appellant from the club.  The appellant had also bought a vehicle from her.  On 24 August 2018, her son Colin called her to come to the club after the incident.  He was hysterical.

Joanne Siglin^[283]

229. [229]
     Joanne was employed behind the bar at the football club.  She had been employed there since 2014.  Joanne knew Woodward from about a year after she started working at the club.
230. [230]
     Joanne did not attend the club on 24 August 2018, but she had probably had a phone conversation with the appellant that afternoon and knew he was going to the club.  She also spoke to the appellant while he was at the club.

Consideration – Ground 1

231. [231]
     It was undisputed that the appellant took the knife with him when he went to the club on the night of 24 August 2018.
232. [232]
     There was evidence from several witnesses that the appellant had spoken about using a weapon or a knife in a fight with Woodward.
233. [233]
     Mr Faulkner knew both Woodward and the appellant through the football club.  According to Mr Faulkner:

     1. (a)
        he spoke to the appellant one day at the house occupied by Joanne; they spoke about the dislike between the appellant and Woodward, and “[the appellant] had just said that he wouldn’t back down to a fight if it needed be”;^[284]
     2. (b)
        the appellant said he “had a bad shoulder so if he had to use a weapon, he would use a weapon against [Woodward]”; the appellant did not use the word “weapon” but referred to a “baseball bat or a bat or something like that”;^[285]
     3. (c)
        he understood the appellant to mean that “if he had to, he would use one”;^[286] that was in the sense that using the weapon would “make it fair, because Woodward’s a tough man, and [the appellant]’s got a bad shoulder”;^[287] and
     4. (d)
        the discussion was about the fact that the appellant “has only one arm, effectively – got a bad shoulder”.^[288]
234. [234]
     Stollznow did some volunteer work as a secretary at the club.  She knew both the appellant and Woodward.  She said there was a feud going on between them; “niggling, but nothing major”.^[289]  She spoke to Woodward about two weeks before he was killed.  Woodward told her that the appellant had whispered in his ear, “next time I see you, you’ll have a knife in your throat”.^[290]
235. [235]
     Haukinimi spoke to the appellant a little over an hour before the fight.  The appellant told him that:^[291]

“ … it was his birthday the following day, and … before he was going to go back to Newcastle, that he wanted to hurt [Woodward], but he couldn’t fight him.  He had a bad shoulder and that he needed a reconstruction on his shoulder.  [The appellant] said that … he would just stab him, that he would go to his house before he left to Newcastle, and be smart about it or something …”.

236. [236]
     The appellant referred to the shoulder issue in his evidence in chief:^[292]

“Okay.  Tell me about your shoulder?---Well, it would’ve been around 2014, I started having problems with it.  … I was a beef carter.  … so I would work at a wholesale beef factory, where I would drive a truck and deliver the quarter carcasses of beef, whole pigs, lambs, things like that, before they’re cut up, so that was – it put a lot of strain on my shoulder.  I then was involved in a motorbike accident, like a – just a dirt bike, out in the bush, and then – then, as a scaffolder – so then, I was a scaffolder, and just – I believe, over the use of scaffolding and riding dirt bikes, it just become very loose and – I think they explain it as a Hill-Sachs fracture, where I was – some bone deformity or missing bone, and then … torn and stretched ligaments and tendons in my shoulder, so it would pop out quite easily and – yeah, just progressed to be worse.

All right.  Then, that’s your right shoulder?---Yes.”

237. [237]
     In his police interview, the appellant said he was shortly due to have surgery on his shoulder, and he took Endone and Targin for the pain.
238. [238]
     A formal admission was made that an X-ray on the appellant’s right shoulder showed that “the humeral head [was] high riding and superiorly positioned, however, does not appear dislocated”.^[293]  The term “high riding humeral head” meant the humeral head was displaced upward without dislocation.^[294]
239. [239]
     The appellant was asked about the conversation with Mr Faulkner and the suggested use of a bat.  In the course of his response, the appellant accepted there was such a conversation and acknowledged his difficulty if he fought Woodward:^[295]

“You had also told Toby Faulkner before this night, hadn’t you, that you’d [use] a baseball bat to fight Mr Woodward to overcome your own disability in a fight?---No, and I couldn’t swing a bat anyways.  So it would – it was not in the context of he can punch.  … Why would you – you couldn’t fight him anyways.  Have you seen the size of him?  You know, the shoulder.  You’d need – you’d need a baseball bat to take him out, you know.  Like, you’d need a truck to hit” – you know, things along that line of things.  So to put in context, it would be if I had to fight him, I’d need something like a baseball [bat] or something.  Whether I said it, or Toby said it, it was said, but it was in that context.  It was never “I’m going to go fight him,” or going to go do anything,” because that’s not what was said.”

240. [240]
     The appellant accepted that he was skilled in the use of the knife, and with both hands.^[296]  Another witness, Kalisperis, described the appellant’s skill in using the knife.^[297]

CCTV footage – Exhibit 15

241. [241]
     None of the CCTV footage shows the events in the street, nor was it accompanied by sound.  Of the footage inside the club, the only relevant part for present purposes is that from Camera 9, between 6.31 pm and 8.04 pm.^[298]  That camera was in the pool room.  Relevantly the jury could have accepted that it showed:

     1. (a)
        between 7.21 pm and 7.32 pm two groups of players set up the pool tables; one was Hutton, Brown, and Woodward; the other was Hiku, Blake, and the appellant; the tables were close to each other;
     2. (b)
        at about 7.32 pm, the appellant clapped and apparently commented on Woodward’s playing; as the appellant commented, Hutton approached him; by his actions, Hutton was remonstrating with the appellant; Brown joined in; Woodward was not part of that;
     3. (c)
        at about 7.34 pm, Woodward pulled Hutton and Brown away;
     4. (d)
        Brown continued to say something to the appellant; his gestures suggest that he was urging that both groups stay apart or stop comments, or both; things calmed down by about 7.35 pm;
     5. (e)
        at about 7.40 pm, the appellant twice offered pizza to Brown and Woodward, and both declined (twice); Woodward then left the pool room (and remained away until 7.58 pm);
     6. (f)
        Brown continued to speak to the appellant, using “stop it” type gestures; by about 7.42 pm, Blake and Hiku joined in, and Hutton came over;
     7. (g)
        at 7.43 pm, Blake and Hiku got on with the game of pool; Brown was still remonstrating with the appellant;
     8. (h)
        by 7.44 pm, Hutton and the appellant apparently argued; at 7.45 pm, Neil came in and separated Hutton and the appellant, gesturing for the appellant to return to the chair near the pool table for that group.  Hutton and the appellant separated, moving to opposite sides of their respective pool tables; Blake and Hutton were apparently exchanging words; Neil evidently told the two groups to stay on their own tables; Neil remained between the tables, apparently to keep them apart; by about 7.47 pm, Neil was seated on one of the chairs between the two groups;
     9. (i)
        the appellant left the pool room at about 7.50 pm and returned at 7.52 pm; he immediately started comments of some kind and went to sit near Hutton;
     10. (j)
         as the appellant and Hutton speak, they take each other’s hand in a handshake; the handshake is prolonged, lasting from 7.53.44 pm to 7.54.23 pm; it ceased with each pulling away; at that point, the appellant stepped back, then suddenly stepped into Hutton, as if shaping up to fight;
     11. (k)
         Neil saw that occur and went over to the appellant, directing him back to his chair; he remonstrated with the appellant, gesturing in a way that suggested he would make the appellant leave the pool room.
242. [242]
     The jury could have accepted that that footage showed that the appellant’s confrontational actions that night were not just directed at Woodward, but also Hutton and Brown.  Neil had to intervene to keep them apart and stop the interaction, and when the appellant carried on.  The appellant’s attitude was revealed by his actions when he and Hutton broke off the handshake.  The appellant abruptly shaped up as if to fight Hutton.  Plainly, Hutton thought that to be the appellant’s intention, as did Neil.  Neil moved immediately to intervene (for the second time), forcing the appellant away, and plainly threatening to throw the appellant out of the pool room.

Appellant’s submissions

243. [243]
     The ultimate submission by Mr Hamlyn-Harris was that the jury could not have been satisfied that the appellant held the requisite intent to kill or do grievous bodily harm when he stabbed Woodward:^[299]

“And our submission is that, when it comes to the ground 1, unsafe and unsatisfactory, the evidence has to really be looked at from the point of view of [the appellant] suddenly finding himself in that position and being punched in the head in the course, and then retaliating, in the course of a very, very short incident, lasting, as Mr Owen estimated, about ten seconds.

So our submission is – sorry, before I say that, of course self-defence and provocation have technical aspects to them.  But whatever way you look at it, in our submission, [the appellant] was acting defensively.  There’s no suggestion that he had any warning or expectation that he would suddenly be in that position, and he reacted immediately, within the short space of time.  And he reacted, well, he said he acted instinctively.  So our submission is that a reasonable jury could not be satisfied in that short space of time that he had an intention to kill or to do grievous bodily harm.

…

… our submission, in a logical sense – sorry, logical order, I should say, is that given [the appellant’s] circumstances when he stabbed Mr Woodward, a reasonable jury could not be satisfied, because of the suddenness of the quickness of it, that he had an intention to kill or to do grievous bodily harm.”

244. [244]
     That submission was built upon a number of contentions about the evidence:

     1. (a)
        when the CCTV footage was examined in conjunction with the evidence relating to what happened in the pool room (before the appellant and Woodward went outside into the street), it became apparent that there had been very little interaction between the appellant and Woodward, and the goading of Woodward by the appellant in the pool room lasted only about 20 minutes, rather than some prolonged time;
     2. (b)
        the appellant’s evidence was that it was the others (such as Brown and Hutton) who were aggressive towards him;
     3. (c)
        in that light, the aggression towards the appellant explained his references to picking a side if there was a fight and backing him if the police were called; it also explained the appellant’s later behaviour in yelling and swearing down at Woodward and calling him a pussy; the reasonable inference was that the appellant had been cheeky to Woodward and the “they were the big blokes who came over and were aggressive to him”;^[300]
     4. (d)
        the evidence from Haukinimi was to the effect that the appellant’s references to stabbing Woodward were not taken seriously by Haukinimi, who did not pass it on to Woodward;
     5. (e)
        the evidence of Hiku was that the appellant and Woodward spoke on the balcony before the appellant said to Woodward, “I’ll have a chat downstairs”; the appellant and Woodward left the balcony within a minute or so of each other;
     6. (f)
        the various accounts of the fight in the street showed that different witnesses did not necessarily see the same thing; however, the evidence of Blake, Hiku, and Liu was relied on, in so far as they said Woodward pushed or attacked the appellant first;
     7. (g)
        the evidence of the fight showed it took place in two distinct parts: the first being before the two ended up on the ground, and the second being after the two were on the ground; and
     8. (h)
        no-one saw the knife until after the fight ended, the inference being that the appellant did not produce it until he was on the ground being hit.
245. [245]
     In my view, the submission that it was not open to the jury to be satisfied that the appellant held the intention to kill or do grievous bodily harm must be rejected.
246. [246]
     It was open to the jury to accept the evidence referred to in paragraphs [231] to [234] above, just as it was open to the jury to accept the evidence that the appellant beckoned Woodward down the street to join in a fight:

     1. (a)
        Owen heard the appellant say words to the effect of “[c]ome so I can hurt you,” or “[c]ome and let me hurt you”; and, “[c]ome on.  Come on” before the appellant started walking towards Tramore Street: see paragraph [6] above; and
     2. (b)
        Liu heard the appellant telling Woodward to come away from the clubhouse and follow him down the road: see paragraph [11] above.
247. [247]
     It was, in my view, open to the jury to put those pieces together, draw a conclusion from the CCTV footage that the appellant was generally agitated and spoiling for a fight, and to reason as to the appellant’s intention in the way set out below.
248. [248]
     For some time before 24 August 2018, the appellant had developed and harboured an animosity towards Woodward.  That was reciprocated on Woodward’s part.
249. [249]
     Before the night of the fight, the appellant had an injured right shoulder which he knew would severely impede him if he ended up in a fight with Woodward.  It had “torn and stretched ligaments and tendons … so it would pop out quite easily”.  The shoulder was so bad that he had to drive a forklift one-handed, and he could not play pool.  He was taking Endone for the pain, and was due for surgery in the near future.
250. [250]
     Knowing that, the appellant said to others that he would have to use some sort of weapon in such a fight just to even things up against the stronger man (Woodward).
251. [251]
     On at least two occasions, the appellant threatened to use a knife against Woodward.
252. [252]
     On one of those occasions, the appellant told Haukinimi that, as he could not fight Woodward, he would just stab him.
253. [253]
     The appellant had a knife that would fit into his pocket.  He was skilled in its use, using either hand.
254. [254]
     The appellant took the knife to the club, intending that he would use it if he ended up in a fight with Woodward.
255. [255]
     The appellant engaged in antagonising Woodward during the night, by sarcastically commenting on his pool playing ability and calling him a “pussy”.
256. [256]
     When in the street, the appellant persistently summoned Woodward to follow him down the road, away from the clubhouse.
257. [257]
     The appellant did so intending to engage in a fight with Woodward, signified by his use of phrases to the effect of “[c]ome on.  Come on” and “[c]ome so I can hurt you”.
258. [258]
     In order to have any chance in such a fight, the appellant knew his injured right shoulder meant that he had to use a weapon.
259. [259]
     The only weapon the appellant had that night was the knife.  It was possible that the appellant intended to use the empty Canadian Club bottle as a weapon, but he had thrown it away.
260. [260]
     It was open to the jury to infer from the evidence:

     1. (a)
        the appellant knew that the knife was sharp, and that its use against a person was going to cause at least grievous bodily harm to that person;
     2. (b)
        Woodward did not know that the appellant had a knife;
     3. (c)
        at the point when the appellant was in the street, summoning Woodward to come away from the clubhouse and fight him, the appellant intended to use the knife to cause injury to Woodward, by killing him or, at the least, causing him grievous bodily harm.
261. [261]
     The appellant used the knife in the fight.  That fact showed his intention to use it; that intention being held at the moment he took it out of his pocket, but also prior to that time, when he was in the street and summoning Woodward down the street for a fight.
262. [262]
     The appellant’s intention could also be inferred from his statement to Woodward when he stood up, “[i]s that all you’ve got”, and his threat to use the knife against Liu.
263. [263]
     The jury were in a position to assess which witnesses they accepted, and which parts of the evidence they accepted.  They were not obliged to reason in the way postulated by the appellant.  They could reject it for the reasons set out above in paragraphs [248] to [262].  Their advantage in having seen and heard all the witnesses cannot be matched by this Court’s review by reading of the record.
264. [264]
     In my view, the appellant has not identified weaknesses in the evidence that reduce its probative value in such a way that this Court ought 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.

Ground 3 – misdirection on self-defence and provocation

265. [265]
     This ground concerned the directions given to the jury concerning provocation and self-defence.  In summary, the contention was that the directions should have confined the jury’s consideration of both issues to their particular application to the part of the incident where the appellant was on the ground with Woodward straddling and punching him.
266. [266]
     There are two matters that need to be borne in mind when assessing the directions given.  One is that the learned trial judge gave the jury a set of slides to watch and read, which set out the main points of the summing up.^[301]  The other is that defence Counsel sought no re-direction on any aspect of these directions.
267. [267]
     The directions given commenced with provocation so far as it concerned self-defence:^[302]

“… I need to tell you something about provocation so far as it relates to self-defence.  Now, there are all sorts of provocations.  This is provocation so far as it concerns self-defence.

You will see on slide 21 that provocation means any wrongful act or insult of such a nature as to be likely when done to an ordinary person, to deprive that person – that is, the ordinary person, of the power of self-control and to induce that person to assault the one who did the wrongful act or insult.  So you have a wrongful act or insult by person A which is done to the ordinary person, person B.  It is of such a nature that it deprives person B of the power of self-control, and it induces person B to assault person A.  So it is a little more complicated than simply prattling off self-defence.  On this point, the question for you is whether the prosecution has satisfied you beyond reasonable doubt that the behaviour of [the appellant] during the night – and on the prosecution case, his invitation to Mr Woodward to come down the street to fight, constitutes provocation.

You have to ask yourself, what are we satisfied beyond a reasonable doubt was done by the defendant during that night.  And would it, if done to an ordinary person, deprive that person of the power of self-control, and induce that person to engage in an assault.  Remember the definition requires that you consider the effect of the wrongful act or insult on an ordinary person.  And what you are thinking about here is the effect on [the appellant], not the effect on Mr Woodward.  In considering this, you may take into account the personal characteristics and attributes of Mr Woodward for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult.  Let me give you an example.  Smith might make a series of assertions to James, which means something to James because of the history of the two people – or their family or some other incidents about which they know.  The assertions might mean nothing to another person.

You are entitled to take into account what the behaviour means to the person who understands the nature or intent of the assertions.  But you then assess that by applying the power of self-control of a hypothetical ordinary person.  Knowing what you do about the history of these two men, has the prosecution shown you that [the appellant]’s words and conduct – which meant something to Mr Woodward – remember there was evidence that earlier he was talking about apologies and so on, were they enough to deprive an ordinary person of self-control, and induce an ordinary person to assault [the appellant]?  So that is provocation so far as self-defence is concerned.”

268. [268]
     Then, dealing with self-defence where the appellant did not provoke Woodward, his Honour said:^[303]

“The Criminal Code says that a person who is assaulted may use such force as is reasonably necessary to make an effectual Defence against the assault, and that can include lethal force where the person using the force cannot otherwise save himself or herself from death or GBH or believes that he or she is unable to do so, except by acting in that way.  That belief must be based on reasonable grounds.  But subject to that requirement, it is the defendant’s belief that is the definitive circumstance.  So – but let us look at each part of this issue.  And we need to look at it not just in a general fact-finding exercise, but whether the prosecution has satisfied you beyond reasonable doubt that at least one of these things that I referred to, did not occur.  First, did Mr Woodward assault [the appellant]?  There does not seem to be any disagreement that he did.  The issue is the circumstances in which that occurred.

You will recall the evidence about who threw the first punch.  Was it Mr Woodward?  Was it [the appellant] – who, one witness said, threw a punch and missed?  Ms Marco says that [the appellant] provoked Mr Woodward.  If you accept that that has been established beyond a reasonable doubt, then this type of self-defence does not apply.”

269. [269]
     By each of the highlighted passages, it was submitted that the learned trial judge impermissibly extended the alleged assaults to be considered in respect of self-defence and provocation under s 304 of the Criminal Code (Qld) to a point earlier in time than when the appellant was on the ground.^[304]  It was put that “the directions on self-defence and provocation under section 304 of the Criminal Code did not make it clear that these issues had to be considered in relation to that assault and not any earlier assault by Mr Woodward”.
270. [270]
     Referring to R v Dayney,^[305] it was submitted that the ultimate issue in either form of self-defence under the Code was whether the defendant’s actions provoked the assault which the deceased actually made on the appellant’s account.  Mr Hamlyn-Harris contended that the relevant assault occurred when the appellant was on the ground being hit by Woodward, and no earlier.  He argued that, if it included the earlier assaults, that may raise questions of different defences to different parts of the Woodward’s conduct.^[306]
271. [271]
     The second part of the submission focussed on a direction given after the learned trial judge had been through the evidence of the eye witnesses, largely as set out in paragraphs [5] to [25] above.  His Honour then said:^[307]

“You have to consider what might have been the provocation by Mr Woodward.  Now, this comes down to what [the appellant] said about his memory of the events.  He recalled being hit by Mr Woodward and the fight developing from there.

You have to consider whether that conduct occurred.  You have to assess the conduct of Mr Woodward from the point of view of the defendant.  You need to consider the defendant’s personal circumstances and the history between them.  You have heard a lot about their antipathy towards each other and the behaviour of each of them on that night.  With that understanding of the conduct, consider what you find Mr Woodward did, if anything, towards the defendant.  You have to ask whether that conduct – the conduct that you find occurred could have caused an ordinary person to lose self-control, as [the appellant] says he did.”

272. [272]
     The submission was that those directions “do not adequately relate the explanation of the defence to the immediate acts of Mr Woodward that the appellant was responding to when he stabbed Mr Woodward”, namely when Woodward was straddling the appellant and punching him and not earlier.^[308]
273. [273]
     In my view, for a number of reasons, those submissions cannot be accepted.
274. [274]
     First, the evidence was that the time which elapsed from the moment the appellant and Woodward came into contact in the street, to when Woodward was dragged off having sustained fatal wounds, was about 30 seconds.  Almost every aspect of what happened in that less than thirty seconds was controversial.  Not only was it very fast, both were in close proximity to each other the whole time.  What started with punches thrown turned rapidly into the appellant being thrown against the fence, and immediately onto the ground.  It is not realistic to separate the punches at the very first moment from the other actions.
275. [275]
     In the circumstances, the interactions were one composite activity as discussed in R v Chen.^[309]  There, discussing whether there was latent duplicity in a number of charges being brought out of a sequence of assaults, this Court said:^[310]

“Courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide in cases such as this and the question will always be one of fact and degree for decision in each case.  Unlike those cases where events are so close in time and place that they can be viewed as one composite activity, the latent duplicity here, once exposed, left the appellant without knowledge of the particular act alleged as the foundation of the charge resulting thereby in a substantial miscarriage.”

276. [276]
     Secondly, it was a matter for the jury to determine just what conduct came within that one composite activity.  Depending on what combination of the evidence they accepted, the jury might conclude that it:

     1. (a)
        started with pushing, and/or missed punches, and/or an exchange of punches or grabbing of shirts;
     2. (b)
        progressed to punches or loss of footing and stumbling, or perhaps the appellant being thrown into a fence or onto the ground, or them both falling to the ground;
     3. (c)
        progressed to Woodward pinning the appellant to the ground and punching him or they punched each other, or they continued to struggle and both fell to the ground; and
     4. (d)
        ended with the appellant repeatedly stabbing Woodward with the knife, before and/or after they were on the ground, and until Woodward was pulled or perhaps lifted off the appellant.
277. [277]
     The prospect that various possible findings might be made, depending on the evidence, meant that the directions had to include all of the composite activity.^[311]
278. [278]
     Thirdly, and for the same reason, the jury were not bound to conclude that the assault was confined to the time Woodward was straddling the appellant and punching him to the head.
279. [279]
     Fourthly, it is evident from reading the transcript that both sides conducted the case on the basis that the interactions constituted one composite activity.  Just what was found to comprise that composite activity was a matter for the jury.
280. [280]
     Fifthly, when one examines the directions, the learned trial judge covered all of the activity from the moment the interaction started in the street to when it ended.  Inevitably, some time was spent on the events on the ground as that was when the stabbing occurred.  Neither defence Counsel nor the prosecutor sought redirections of the kind now postulated, even though close attention was being paid to precisely what was said.^[312]
281. [281]
     This ground fails.

Ground 2 – prosecutorial misconduct

282. [282]
     This ground concerned a passage in the final address by the prosecutor where she referred to CCTV footage tendered in the trial:^[313]

“Now, the segment of footage that I showed Owen when he gave evidence was between 20.46.32 to 20.53.54, when he was there in the defendant’s company.  That footage showed Owen, the defendant, Adam Blake and AJ all on the far end of the balcony furthest away from the camera.  In that part of the footage at 20.53.30, so the tail end, you can see, I would suggest, the defendant remove something from his right pocket.  The defendant appears to do a flicking action with his wrist with something in his hand that appears to unfold, and you can see a glimmer.  Even if it’s momentarily, you can see a glimmer which, I suggest, is the blade catching the light.  AJ steps forward to inspect what he has, and even appears at one moment to take hold of it before the defendant takes it back in his hand and returns it to his right pocket.  The defendant otherwise kept the knife in his pocket when he was at the club but for those two occasions, and, of course, when he was committing the offence.

The matter of fact that I suggest you find is that the defendant then proceeded to antagonise Mr Woodward at the club for the purpose of provoking him to fight.”

283. [283]
     It was submitted that the prosecutor used that passage as a basis to make the following submissions to the jury during final address:

     1. (a)
        Haukinimi’s evidence was that he saw the appellant’s right hand at his side near his leg when both parties were still standing;
     2. (b)
        the appellant took the knife from his pocket when the men were still standing, and it was then in his right hand;
     3. (c)
        this submission, invoking the factual basis on which s 272(2) of the Criminal Code excludes the defence of self-defence against provoked assault:

“ ... the defendant commenced the assault with an intent to kill or do grievous bodily harm and endeavoured to kill or do grievous bodily harm before the necessity arose of ... preserving himself.”

4. (d)
   on a similar basis, the prosecutor submitted that the defence of provocation (s 304 of the Criminal Code) should be rejected:

“... the defendant did not wound Mr Woodward in the heat of passion, because Mr Woodward suddenly provoked him by hitting him, if you accept that Mr Woodward hit him first.  Rather, the defendant stabbed him because he always intended to ...”

5. (e)
   at the end of her cross-examination, the prosecutor put this proposition to the appellant, which he denied:

“You had an intent to kill him or to cause a life-threatening injury or a permanent injury to his health before the fight even started, didn't you?”

284. [284]
     The essence of the complaint is that the prosecutor told the jury that the video showed the appellant taking the knife out of his pocket on the balcony, when that could not be seen.
285. [285]
     The sequence of events surrounding what was said in address needs to be understood.
286. [286]
     The prosecutor’s comments, set out in paragraph [282] above, occurred at the end of the day.  Before the court adjourned, and in the absence of the jury, defence Counsel raised the matter with the trial judge:^[314]

“The other matter I wish to raise is far more troubling.  My learned friend made much of this notion that she could prove that the knife was in the right hand of the defendant, and she said to the jury that that could be done when they look at the footage from the balcony at 20.53.30.  That when they looked at that, you could see that he pulls the knife from his right pocket.  That he flicked it.  You can see something of a glimmer that she said was the blade catching the light, and then he takes it back in his hand and puts it into his pocket.  Now, that scenario, of course, was never put to my client for him to comment on and, therefore, for me to be able to address the jury on.

When one looks at that footage, in my submission, it is blatantly obvious that what he does is pass a cigarette lighter to Mr Hiku.  You can see Mr Hiku with his back to the camera and some smoke comes out, and he hands something back to [the appellant].  I’m not saying that that scenario was deliberately dishonest, but when it wasn’t put to the defendant to comment on, and now arises in the manner in which [it] did, it is apt to mislead the jury.  The question is what to do about it.”

287. [287]
     As can be seen, the two points raised were that there was unfairness because: (i) that factual state was not put to the appellant; and (ii) it was factually wrong.
288. [288]
     Defence Counsel then proposed a course, namely that the prosecutor “look at that passage again, or that portion of the footage, with that option in mind, and, perhaps, make a correction in the morning”.^[315]  He added that his “principle submission is, what she purported to tell the jury that … you could see in that footage is not accurate, … it was not put to my client to allow him to comment on it and it’s grossly unfair to the defendant”.^[316]
289. [289]
     The prosecutor then submitted that she tried to put that to the appellant, and she thought the appellant did not agree.  Matters were left on the basis that the prosecutor would check overnight to see if she had put that state of affairs to the appellant.
290. [290]
     On resumption, the prosecutor made submissions as to what had been put by her in cross-examination.  The prosecutor then told the learned trial judge:^[317]

“Now, overnight, Mr McGuire sent me what he contends he sees in the footage.  I’m prepared to say to the jury – I want to go back to something I said to you at the start of my address yesterday.  You’d recall that I was speaking to you about the CCTV footage of the front balcony and, particularly, the part where the defendant is in the company of Owen Kalisperis and his friends.  In fairness to the defendant and Mr McGuire, who did not address that aspect, I’m prepared to tell you what they would contend that you would see instead and that is that it was the defendant’s mobile telephone and not the knife that the defendant removed from his pocket at 20.53.30 and the mobile telephone that he put back into his right pocket.  Ultimately, these are just observations that we both make about the CCTV footage.  It is a matter for you what you make of it.”

291. [291]
     It can be seen that the prosecutor was referring to a document prepared by defence Counsel, but did not propose that the document be given to the jury.
292. [292]
     The prosecutor then made this submission:^[318]

“So, in my submission, in terms of giving the defendant, in fairness, an opportunity to comment about that part of the footage, I did all that I could at that point to do that.  I – I willingly accept that Owen doesn’t suggest that he sees that.  It’s just an observation that I make.”

293. [293]
     Defence Counsel then provided the learned trial judge with document he had sent to the prosecutor, that being the document referred to in the passage in paragraph [290] above.  Defence Counsel then proceeded to make submissions as to what he said could be seen on the video.  He then submitted:^[319]

“So my difficulty with my learned friend’s proposal is it short-changes the defence so far as what we say happened and I would ask that at least that document be made available to them as a fulsome explanation by the defence as to what can be seen in that session of footage that my learned friend said to them was the flick knife – was the knife.”

294. [294]
     At that point, it can be seen that the difference between what was proposed by the prosecutor and by defence Counsel was that defence Counsel wanted the document he had prepared to be given to the jury as a “fulsome explanation by the defence as to what can be seen in that session of footage ...”.
295. [295]
     His Honour then gave reasons on the application by defence Counsel.  His Honour accepted that it should have been put directly to the appellant, but was not.^[320]  His Honour then referred to the competing positions, namely, the prosecutor just making the proposed statement to the jury, and defence Counsel asking for their document to go to the jury.^[321]
296. [296]
     His Honour continued:^[322]

“This is an important point in both the prosecution and defence cases.  I am inclined to accept that the document Mr McGuire has provided is one which should be provided to the jury without Mr McGuire, of course, addressing it.  It would be provided on the basis that it is simply the defendant’s case on how the actions of the persons should be seen.  The prosecution can, of course, then deal with it and say what the prosecution wishes to say about the force of the document and how it should be interpreted.  Now, that would require the provision of this document to the jury, not as it would need to be provided – it would need to become an exhibit.  It would need to be an exhibit and subject to warnings that it is not – it is nothing other than the defendant’s argument with respect to what is able to be seen.  Now, on the basis of that, do you want some time to consider that and how it might occur, Ms Marco.”

297. [297]
     After a short adjournment, the prosecutor read out the words she proposed to say to the jury regarding the tender of the document:^[323]

“So I want to go back to something I said to you at the start of my address yesterday – sorry, just adding a word.  You would recall that I was speaking to you about the CCTV footage of the front balcony and, particularly, the part where the defendant is in the company of Owen Kalisperis and his friends.  In fairness, because the defendant did not have an opportunity to comment on it, and so Mr McGuire did not address it, I’m prepared to tender for them a document that they’ve prepared that sets out the defendant’s case of what they contend can be seen in that segment of footage.  Tender.  So that is the defence case, not the prosecution case.  The prosecution maintains the submission I made to you yesterday.  Ultimately, these are just observations that we both make about the CCTV footage.  It is a matter for you what you make of it.”

298. [298]
     Defence Counsel said “I’m content with that”.^[324]
299. [299]
     On resumption, those words were read out, the document was tendered, and it became Exhibit 38.

Consideration

300. [300]
     In my view, for the following reasons this ground should be rejected.
301. [301]
     First, the unfairness said to follow from the statement (set out in paragraph [282] above) being made was because it had not been put to the appellant so that he could comment upon it, and that meant also that defence Counsel was denied the chance to address upon it.  True it is, that the prosecutor’s statement was made after the close of both cases and was not put directly to the appellant.  However, it is plain that the prosecutor believed she had put it adequately.^[325] That turned out to be a mistaken view, but it serves to characterise this misstep at the lower end on what might be said to be prosecutorial misconduct.
302. [302]
     Secondly, at no time did experienced defence Counsel make an application for a mistrial.  Instead, defence Counsel sent a document to the prosecutor overnight, setting out the defence case as to what the CCTV footage actually showed.  That led the prosecutor to propose a form of words that she would say to the jury: see paragraph [290] above.  Significantly, that proposal did not include the document being given to the jury or made an exhibit.  Defence Counsel submitted successfully that his document should be tendered as a “fulsome explanation by the defence as to what can be seen in that session of footage”.  In context, that meant that the document contained all that could have been said by the defence on that point.  That was, in my view, a submission that proceeded on the basis that the unfairness could be overcome by taking the course defence Counsel proposed.
303. [303]
     Thirdly, the learned trial judge ruled in favour of the course proposed by defence Counsel.  Even though defence Counsel had not sought a mistrial, it is evident that the learned trial judge did not take the view that the unfairness was such that it could not be overcome.
304. [304]
     Defence Counsel and the learned trial judge did not consider that the issue was so clear that the prosecutor should be directed to withdraw the submission.  Nor was it considered necessary to direct the jury that what the prosecutor said could be seen on the video could not, in fact, be seen.
305. [305]
     Fourthly, a form of words was then proposed which included the tender of the defence’s document.  In response, defence Counsel said, “I’m content with that”.  Not only was that an acceptance that those steps would cure any unfairness, it was also a conscious step not to make an application for a mistrial, or to seek further directions.
306. [306]
     Fifthly, in the circumstances, the prosecutor’s conduct did not cause an unfair trial.  Rather, the case comes within that category referred to by Deane J in Whitehorn v The Queen,^[326] where his Honour said:^[327]

“Prosecuting counsel in a criminal trial represents the State.  The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.  The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial.  Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction.  On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.  As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer (1953) 37 Cr. App. R. 37, at pp. 39–40.  If there be exceptions to that general proposition, they do not presently occur to me.”

307. [307]
     This ground fails.

Conclusion

308. [308]
     For the reasons expressed above the appeal should be dismissed.  The order I propose is:

Appeal dismissed.

309. [309]
     McMURDO JA:  As the trial judge told the jury, the major issue in this case was that of self-defence.  There was no issue that the appellant had killed Mr Woodward, by stabbing him as the two men fought.  Nor was there any dispute that Mr Woodward had assaulted the appellant.  On any realistic view of the evidence, the stabbing which caused Mr Woodward’s death was inflicted as Mr Woodward was on top of the appellant and punching him in the head.

310. [310]
     The evidence raised for the jury’s consideration the application of not only s 271(2) of the Criminal Code, but also, according to the prosecutor’s argument, s 272.  The prosecution case was that any relevant assault by Mr Woodward was provoked by the appellant, or was preceded by an assault upon Mr Woodward.
311. [311]
     The prosecution argument was that the appellant went to the clubhouse on that evening with the intention of stabbing Mr Woodward, and to that end, the appellant sought to provoke Mr Woodward to fight him.  The prosecutor argued this provocation occurred throughout the evening as well as when the appellant encouraged him to come down to the street to fight him.  The evidence did not demonstrate that it was the appellant who threw the first punch.  But the prosecutor argued that if it was Mr Woodward who did so, he was provoked, just as the appellant was intending.
312. [312]
     In R v Prow,^[328] a majority of the Court held that the word “provoked” in s 271(1) derives its meaning from the definition of “provocation” in s 268.  Accordingly, as this Court held in R v Dean,^[329] juries should be instructed about the meaning of “provoked” with reference to that definition, and that self-defence under s 271 is not defeated merely by the circumstance that the victim’s assault upon the accused was “provoked” in some broader sense of the term than would constitute “provocation” as that term is defined in s 268.^[330]  Consequently, as the jury was instructed in this case, the word “provocation” means any wrongful act or insult, of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.  The question for the jury in this respect was not so much whether the appellant was trying to provoke Mr Woodward to fight him, but whether there was something done or said by the appellant which, when done to an ordinary person, would be likely to deprive him of the power of self-control.
313. [313]
     There was a body of evidence from several witnesses as to the history of animosity between these two men.  However, the conduct upon which the prosecutor relied, in arguing that there was provocation by the appellant, was limited to what occurred at the clubhouse on that evening.  There were interactions in the pool room between the two, in which the appellant was making sarcastic remarks about Mr Woodward’s playing on a nearby table.  Subsequently, when the appellant was on the smoking area balcony with Mr Blake and Mr Hiku, Mr Woodward approached the appellant who told Mr Woodward that he wanted an apology for what had occurred between Mr Woodward and the appellant’s mother and sister.  According to the witness Mr Hiku, the appellant then said to Mr Woodward “I’ll have a chat downstairs” and the appellant then left the smoking area followed by Mr Woodward.  When downstairs and on the street, the two men argued before the physical fight commenced.
314. [314]
     Considering all of the evidence relating to this issue of provocation by the appellant, and on the most favourable view of it for the prosecution case, it did not provide a reasonable foundation for the jury to be satisfied, beyond reasonable doubt, that any relevant assault by Mr Woodward was provoked by the appellant.  More than an hour passed between their interactions in the pool room and the commencement of the fight.  The evidence of their exchanges on the balcony before they went to the street provided no basis for the jury to satisfied that any insult by the appellant at that point was of such a nature as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the appellant.  Clearly, it was open to the jury to be satisfied that the appellant suggested that the two should fight, and that it was this suggestion which in the context of the acrimony between the two men, caused the confrontation as it commenced in the street.  But the fact that Mr Woodward, a man who had been barred from attending the club for a period of time for his misbehaviour and who was on this evening heavily intoxicated, took up the appellant’s invitation, did not mean there was something done or said to him which, when done to an ordinary person, would have deprived that person of the power of self-control and induced him to assault the appellant.
315. [315]
     Consequently, for self-defence to be excluded the prosecution had to establish, beyond reasonable doubt, at least one of the following:

     1. (a)
        the nature of Mr Woodward’s assault was not such as to cause a reasonable apprehension of death or grievous bodily harm;
     2. (b)
        the appellant did not believe, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm; or
     3. (c)
        the force used by him was not necessary for his self-defence.
316. [316]
     The prosecution case at the trial, and again in this Court, was that the appellant intended to induce Mr Woodward to fight him, so that the appellant could then stab him.  That argument was relevant in at least two ways.  The first was that under either s 271 or s 272, the appellant could not be considered to have been defending himself when he was instead pursuing his plan under which he took the knife to the clubhouse and behaved towards Mr Woodward as he did.  Secondly, if the jury accepted that Mr Woodward’s assault on the appellant was provoked, so that s 272 applied, the appellant was not to be given the protection of self-defence because in that event he would have begun the fight with an intention to kill or do grievous bodily harm.
317. [317]
     However, in the way in which the appellant’s case was argued in this Court, the prosecution argument, of a preformed and ongoing intention to at least do grievous bodily harm, became relevant in another way.  It was submitted for the appellant that it was not open to the jury to be satisfied that the appellant had in fact formed any intent other than to save himself from serious injury or death, as the appellant said in his evidence at the trial.  At one point in his cross-examination, the appellant said:

“I know now he was not armed. At the time, I did not know anything. I was uncertain of anything at that time. I thought – there was no thought process, it was only fight or flight. It was instinctive actions and reactions to a situation I did not expect. It’s all I could do. It’s all I did do. I’m sorry it’s ended up like this, it was either him here, or me here. Either way, that’s how I felt at the time, that’s what I thought at the time. If it’s not his family there, it’s my family there, either way.”

318. [318]
     The effect of the appellant’s evidence was that he stabbed Mr Woodward only because in the heat of the moment he considered that it was necessary to do so for his own survival.  On his own evidence, he intended at least to inflict knife wounds which would then stop the assault upon him.  On that evidence, it was open to the jury to be satisfied that the appellant stabbed Mr Woodward with the intention of inflicting wounds of a severity which, in law, would constitute grievous bodily harm.
319. [319]
     Returning to the prosecution argument of a preformed intention to induce a fight in which Mr Woodward would be stabbed, there was evidence, which is set out and analysed in the judgment of Morrison JA, which supported that argument.  The jury was entitled to conclude that at least when the men confronted each other in the street, the appellant, with his judgment impaired by his own intoxication, thought that he could and would use the knife if a fight ensued.  But that state of mind did not itself preclude the operation of s 271.  The three issues under s 271, as outlined earlier at [315], remained.  In the consideration of those questions the evidence of a preformed intention, whilst relevant, was not determinative.
320. [320]
     The jury was to consider the evidence of this preformed intention together with other evidence which was relevant to the issue of self-defence.  On the testimony of Mr Owen, the entire fight occupied a number of seconds rather than minutes, in which the appellant was punched no more than three times, with the second blow being slower than the first and third being slower again.  The appellant did not call for help.  And the jury had to consider the likelihood or otherwise of the appellant being able to remove the knife from his clothing and to be in a position to wield it as he did, if he had removed the knife only at the point that he was pressed on the ground and was being punched.
321. [321]
     On the whole of the evidence, I conclude that it was open to the jury to conclude, beyond reasonable doubt, that the appellant did not believe, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm, or for the jury to conclude that the force he used was not necessary for his defence.  It was open to the jury to thereby conclude that the prosecution had proved that he did not kill in self-defence.
322. [322]
     There was a further issue at the trial of whether the appellant had been provoked by Mr Woodward, so as to engage s 304 of the Criminal Code.  On this issue, the onus of proof was upon the appellant, and the appellant’s case at the trial, to the extent that it was argued before the jury, seemed to rely upon Mr Woodward’s conduct in punching him, causing him to lose his self-control and which might have caused an ordinary person to lose that power and to act in the way in which he did.  It was open to the jury to find that this partial defence was not established.  Although the issue of provocation was different to that of self-defence, on the evidence upon which the jury’s rejection of self-defence was open to them, they could not have been bound to find, at the same time, that this partial defence was proven.
323. [323]
     For these reasons, the first ground of appeal must be rejected.
324. [324]
     Substantially for the reasons given by Morrison JA, the other grounds of appeal should be rejected also.  As to the complaint about the directions on self-defence and provocation, the judge’s clear and fair directions would have focussed the jury’s attention upon the situation confronting the appellant when he was being sat upon and punched in the head.  The jury was instructed that there was no doubt Mr Woodward did assault the appellant and they were directed to consider the predicament of the appellant once he had been knocked down, thrown onto the footpath or into a fence, and was on his back being punched by a larger man.
325. [325]
     I too would dismiss the appeal.
326. [326]
     GOTTERSON AJA:  I agree with the order proposed by Morrison JA and with his Honour’s reasons for it.