Douglass v R

1. [1]

   BATHURST CJ: The applicant, Ammie Douglass (the applicant) seeks leave to appeal against her conviction for murder on the following grounds:

2. [2]

   For the reasons given by Rothman J, I agree that ground 1 has not been made out.

3. [3]

   I agree with the reasons of Rothman J and the additional reasons of Johnson J that ground 2 of the grounds of appeal has not been made out.

4. [4]

   I agree with the reasons of Johnson J that ground 3 has not been made out but that ground 4 has been established.

5. [5]

   In those circumstances I agree with the orders proposed by Rothman J.

6. [6]

   JOHNSON J: I have had the advantage of reading, in draft, the judgment of Rothman J. I agree with his Honour that Ground 4 should be upheld, the conviction quashed and a new trial ordered.

7. [7]

   What follows constitutes my reasons for joining in those orders.

8. [8]

   Rothman J has set out the factual background to the appeal which I gratefully adopt.

Appeal Against Conviction

1. [9]

   It is appropriate to consider Grounds 2, 3 and 4 before returning to Ground 1, the unreasonable verdict ground.

Ground 2 - The Causation Issue

1. [10]

   As Rothman J observed (at [118]), the trial Judge provided written directions to the jury concerning the elements of murder and murder by extended joint criminal enterprise (MFI38) and a question trail with respect to issues in the trial (MFI39). Her Honour expanded on these directions in summing up to the jury, including further directions on causation related to the circumstances of this trial.

2. [11]

   Insofar as it is argued in this Court that her Honour’s directions to the jury concerning causation were erroneous or deficient, it should be observed that her Honour was not requested to give any further direction to the jury on the issue of causation so that Rule 4 Criminal Appeal Rules applies.

3. [12]

   In a murder trial, the element that the act of the accused caused death requires the jury to be satisfied that the act of the accused was “a substantial or significant cause of death” or a “sufficiently substantial” cause: Swan v The Queen (2020) 94 ALJR 385; [2020] HCA 11 at [24].

4. [13]

   In the circumstances of this trial, it would have been appropriate for the trial Judge to direct the jury in these orthodox terms with respect to causation. However, the trial Judge was not asked to give a direction in these terms.

5. [14]

   A failure to give full directions about the elements of an offence does not necessarily amount to a miscarriage of justice: Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51 at [80].

6. [15]

   For reasons otherwise given by Rothman J with respect to this ground of appeal, I would refuse leave to the Applicant under Rule 4 Criminal Appeal Rules to rely upon this ground.

Ground 3 - Claim of Error in Reception of Evidence of Admissions

1. [16]

   No objection was taken by the Applicant’s counsel before or during the trial to the admissions said to have been made by the Applicant which are now challenged in this Court by reference to ss.84 and 90 Evidence Act 1995.

2. [17]

   Where an accused person seeks to object to evidence under s.84 Evidence Act 1995 upon the basis that alleged admissions were influenced by violence or other conduct specified in that section, objection should be taken as a pretrial issue by way of voir dire under s.189 Evidence Act 1995. This was the approach adopted in R v Tarantino (No. 6) [2019] NSWSC 1174 where Beech-Jones J considered objections taken under ss.84, 85 and 90 Evidence Act 1995 in advance of a jury trial. Similarly, in R v Blackman [2018] NSWSC 395, Button J considered and upheld an objection to evidence under s.84 Evidence Act 1995 in a voir dire associated with a special hearing which was proceeding before his Honour sitting without a jury. In R v Spiteri-Ahern; R v Barber; R v Zraika (No. 10) [2017] NSWSC 1380, Rothman J considered a s.84 objection in the context of a Judge-alone trial.

3. [18]

   In R v Tarantino (No. 6), Beech-Jones J undertook a helpful examination (at [152]-[183]) of the history of ss.84 and 85 Evidence Act 1995, including Report No. 26 and Report No. 38 of the Australian Law Reform Commission. Although the factual circumstances in that case were different to the Applicant’s case, it is helpful to set out part of his Honour’s analysis of the s.84 issue. Beech-Jones J stated at [184]-[187] (footnotes omitted):

4. [19]

   In the absence of an objection to evidence under s.84, the trial Judge was not obliged to consider whether evidence ought be excluded under that provision. Counsel for the Applicant raised no s.84 objection in circumstances where the body of evidence to be relied upon by the Crown as admissions was well known prior to trial, with the Crown opening to the jury on part of this material and with Witness A (and others) being cross-examined on the material in the Crown case before the Applicant herself gave evidence of these matters in the defence case.

5. [20]

   If the trial Judge was obliged under s.84 to consider this issue in the absence of an objection by counsel for the Applicant, then the only practical remedy, in the context of this trial, would have been to discharge the jury. I am not suggesting that this was a necessary step in this case. Rather, the point emphasises the fact that it was for trial counsel for the Applicant to raise objection to this material, before it fell to the trial Judge to consider whether s.84 had any role to play with respect to evidence upon which the Crown sought to rely.

6. [21]

   The Crown submitted that defence counsel’s decision not to raise a s.84 objection at first instance may have been a tactical one. If the admissibility of the admissions had been raised by way of pretrial application giving rise to a voir dire, it would have been almost inevitable that the Applicant would have been required to give evidence on the voir dire. If the evidence was ruled admissible, then it may have been open to the Crown to rely upon the Applicant’s evidence as a prior inconsistent statement under s.189(8) Evidence Act 1995 if there was inconsistency in her evidence at trial. There is force in this submission.

7. [22]

   The Crown did not argue in this Court that s.84 was not capable of applying to evidence of admissions of the Applicant said to have been influenced by violence threatened by Witness A, the alleged co-offender. As Rothman J has noted (at [138]), s.84 is not limited to admissions made by the improper conduct of a person seeking to obtain an admission.

8. [23]

   Even if some of the admissions allegedly made by the Applicant may have been susceptible to a s.84 objection, I agree with Rothman J that a number of the admissions do not appear to be open to such an objection.

9. [24]

   There is a fundamental difficulty with this Court being asked to consider evidence adduced (without objection) at the trial through the prism of s.84 Evidence Act 1995 in circumstances where no reference was made to that provision at all at the Applicant’s trial. The question whether evidence is inadmissible under s.84 requires a curial process where the Court considers that issue and makes a judicial determination as occurred in R v Blackman, R v Tarantino (No. 6) and R v Spiteri-Ahern, R v Barber; R v Zraika (No. 10). Section 84(2) emphasises the need for such an orderly process.

10. [25]

    As it happens, a new trial will be ordered in this case because of the Applicant’s success on a separate ground of appeal. If the Applicant seeks to object to evidence under s.84 Evidence Act 1995, there will be an opportunity to do so by use of a voir dire under s.189 Evidence Act 1995 in advance of the new trial.

11. [26]

    Complaint was also made under Ground 3 that the evidence of admissions was unfair to the Applicant and that the evidence ought to have been excluded under s.90 Evidence Act 1995. No s.90 objection was taken at first instance. The onus was on the Applicant to satisfy the trial Judge that s.90 applied and no attempt was made to do so. Rule 4 Criminal Appeal Rules constitutes a practical barrier to this aspect of Ground 3 being relied upon in this Court.

12. [27]

    Ground 3 contends that a miscarriage of justice has been occasioned by the reception of evidence of the Applicant’s admissions. The Applicant has failed to make good this ground of appeal.

Ground 4 - The Trial Judge Erred in Failing to Leave an Alternative Verdict of Manslaughter to the Jury

1. [28]

   Rothman J has summarised what occurred at trial with respect to a possible alternative verdict of manslaughter. The written directions (MFI38) and the question trail (MFI39) did not refer to the availability of a verdict of not guilty of murder, but guilty of manslaughter.

2. [29]

   The trial Judge had prepared a draft written direction concerning the elements of the offences of murder and manslaughter (MFI36). However, counsel at trial requested that her Honour not give those directions to the jury. The proposed direction concerning manslaughter in MFI36 was confined to manslaughter by way of excessive self-defence.

3. [30]

   This Court is called upon from time to time to consider a ground of appeal which asserts that the trial Judge erred at a murder trial in failing to leave an alternative verdict of manslaughter to the jury. In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317, the Court (Bathurst CJ, Simpson and Adamson JJ) said at [42]:

4. [31]

   In Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246, Simpson AJA (Bellew and Wilson JJ agreeing) said in this context at [80]-[83]:

5. [32]

   In Martinez v R; Tortell v R [2019] NSWCCA 153, Macfarlan JA (R A Hulme and Adamson JJ agreeing) referred (at [70]-[73]) to decisions of the High Court of Australia which bear upon the issue raised by the present ground of appeal:

6. [33]

   In this case, the trial Judge left murder by extended joint criminal enterprise to the jury in the following way in the written directions (MFI38):

7. [34]

   Counsel for the Applicant submitted in this Court that, applying the principles in Lane v R and Basanovic v R, the trial Judge should have left to the jury an alternative verdict of manslaughter by unlawful and dangerous act upon the basis that the Applicant foresaw that Witness A might deliberately assault the deceased not intending to cause him grievous bodily harm. Upon this basis, unlawful and dangerous act manslaughter could arise given that an assault would be “unlawful” and that an act is “dangerous” if it is such that a reasonable person, in the position of the Applicant, would have realised that by that act, the deceased was being exposed to an appreciable risk of serious injury.

8. [35]

   The Crown submitted that such an approach at trial would have been to invite speculation on the part of the jury: Brown v R [2006] NSWCCA 395 at [46]-[50]; Lane v R at [84]-[90].

9. [36]

   I do not consider that such a direction would invite speculation on the part of the jury. It was a matter for the jury as to whether the evidence of Witness A was accepted in whole or in part. If the jury was satisfied that both Witness A and the Applicant went to the house of the deceased with an intention to steal from him and that Witness A inflicted the fatal wounds to the deceased, then a scenario which would arise, as a matter of inference and not speculation, was whether the Applicant foresaw that Witness A might deliberately assault the deceased, but not intending to cause him grievous bodily harm.

10. [37]

    In circumstances where the trial Judge gave a direction on murder by extended joint criminal enterprise (at [33] above), her Honour should have given a further direction to the jury concerning manslaughter by unlawful and dangerous act.

11. [38]

    I am satisfied that manslaughter by unlawful and dangerous act was sufficiently viable in the circumstances of this trial that it ought to have been left to the jury in accordance with the principles referred to (at [30]-[32] above).

12. [39]

    I am conscious that it was the Applicant’s case at trial that she did not go to the deceased’s house with Witness A and that she was not present at the time when the deceased was killed. Although there was a tactical reason why trial counsel for the Applicant would not wish to argue to the jury that an alternative verdict of manslaughter might be considered, the proper approach to be taken by defence counsel in these circumstances is for such an application to be made to the trial Judge in the absence of the jury, with it being a matter for the trial Judge whether the alternative verdict should be left: Basanovic v R at [82]-[83] (at [31] above). That did not happen in this case. The trial Judge did not receive the assistance from counsel to which she was entitled.

13. [40]

    The question is whether, in the absence of an application being made at trial, this Court should uphold a ground of appeal contending that her Honour ought to have left the alternative verdict of manslaughter to the jury. In my view, an alternative verdict of manslaughter was a viable scenario in this case. Having applied the principles set out earlier (at [30]-[32] above), I am satisfied that the Applicant has made good this ground of appeal.

14. [41]

    I would uphold the fourth ground of appeal.

Ground 1 - The Verdict is Unreasonable and Cannot be Supported by the Evidence

1. [42]

   I agree with the reasoning and conclusion of Rothman J with respect to this ground. I would reject this ground of appeal.

The Sentence Appeal

1. [43]

   In circumstances where the conviction appeal should be upheld and a new trial ordered, it is not necessary to consider the grounds of appeal with respect to sentence.

Conclusion

1. [44]

   I am satisfied that Grounds 1, 2 and 3 should be rejected, but Ground 4 should be upheld. There should be an order for a new trial.

2. [45]

   For these reasons, I agree with the orders proposed by Rothman J.

3. [46]

   ROTHMAN J: The applicant, Ammie Douglass, seeks leave to appeal her conviction and her sentence. The conviction occurred after a trial by jury and, after conviction, the trial judge, Schmidt J, sentenced the applicant to a sentence of 26 years’ imprisonment, with a non-parole period of 19 years and 6 months, commencing 5 October 2016.

4. [47]

   The applicant was convicted of having murdered Christopher Whiteley (hereinafter “the deceased”) between 6 and 12 August 2016 at Lithgow. Murder is a common law offence but is also a contravention of s 18 of the Crimes Act 1900 (NSW) and carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years’ imprisonment.

5. [48]

   The trial commenced on 19 November 2018; the jury retired to consider its verdict on 5 December 2018; and returned with a verdict of guilty on 7 December 2018. The applicant was sentenced on 3 April 2019.

6. [49]

   In relation to conviction, the applicant seeks leave to appeal and appeals on the following grounds:

   1. (1)

      Ground 1: The verdict is unreasonable and cannot be supported by the evidence;

   2. (2)

      Ground 2: The trial Judge erred in her Honour’s directions to the jury concerning the element of causation;

   3. (3)

      Ground 3: A miscarriage of justice has been occasioned by the reception of evidence of the applicant’s admissions; and

   4. (4)

      Ground 4: The trial judge erred in failing to leave an alternative verdict of manslaughter to the jury.

7. [50]

   These reasons for judgment do not deal with the appeal or application for leave to appeal against sentence.

Brief factual background

1. [51]

   The applicant’s written submissions briefly summarise the facts before the Court, from which summary, together with the Crown’s Summary of Trial, the following recitation is largely derived. The deceased was 69 years of age and lived alone in a house on Main Street, Lithgow. One evening, between 6 and 12 August 2016, a co-offender to the applicant (hereinafter referred to as “A”) and the applicant entered through the rear of the victim’s house. The victim was in the lounge room and, when he became aware of A’s presence, a struggle occurred, during which the victim was stabbed multiple times. A stole some money from the victim’s pocket, after which he and the applicant left the victim in the house.

2. [52]

   The victim died from six stab and two incised wounds. His body was left in the house and not found for several weeks.

3. [53]

   At the time of the applicant’s trial, A was serving a substantial sentence for his part in the murder. He was called by the Crown and gave evidence against the applicant, pursuant to an undertaking for which he had received a discount on sentence. The fact of the discount on sentence was before the jury.

4. [54]

   In the applicant’s trial, the evidence of A was that he and the applicant were each armed with a knife, when they went to the victim’s home. They had previously discussed stealing money from the premises. Further, the evidence of A was that each of the applicant and A had stabbed the deceased and that the applicant had disposed of her knife, together with a pair of gloves and a home-made balaclava. The disposal of these items occurred, obviously, after the offence and was effected by throwing them over the fence of a nearby property.

5. [55]

   The items were found later in the yard of a property which adjoined the laneway at the back of the deceased’s house and photographs of the items were tendered in the trial. The Crown adduced evidence that those items were tested and that DNA, or, more accurately, material containing DNA, was obtained from the items and the extracted DNA did not exclude the applicant as a contributor to the samples taken from the gloves and the balaclava/beanie. [1] DNA was also recovered from the knife and that DNA had the same profile as the deceased or, more accurately, the deceased could not be excluded as the contributor to the DNA. [2]

6. [56]

   Various admissions concerning the murder were made by A and the applicant in conversations that were recorded covertly prior to their arrests. The deceased’s Medicare card was found in the applicant’s house during a search by the police. During the course of her Remarks on Sentence, her Honour noted [3] that the admissions of the applicant in the recorded conversations were consistent with her having an expectation that her presence at the deceased’s house would become known to the police.

7. [57]

   The cause of the deceased’s death was blood loss from the stabbing and the wounds were consistent with stabbing caused by a knife or knives. [4] The degree of the decomposition of the body, as a result of the time during which it had remained in the property, was such that it made it impossible to determine which of a number of wounds was fatal. [5]

8. [58]

   The Crown put its case, eventually, on two bases. The primary case that the Crown pursued was that the applicant stabbed the deceased in an act contributing to death. [6] Eventually the Crown case was amended so that liability was pursued on the basis of extended joint criminal enterprise as an alternative to its primary basis. [7] For obvious reasons, the evidence of A was crucial to the Crown case.

The Evidence of A

1. [59]

   The applicant and A had met only two weeks prior to the murder. They were involved in an intimate relationship.

2. [60]

   In the course of initial questioning by police, A informed the police that only the applicant had stabbed the deceased. [8] During the course of the trial, A was taken to that part of the interview where he had said that the applicant stabbed the front of the deceased, while the deceased was lying on top of him and the following question and answer occurred:

3. [61]

   In the course of his evidence, A went on to concede that his accounts to Police of how the applicant stabbed the deceased “must have been untrue”, [10] but he maintained that the applicant stabbed the victim. A then said: “the truth was, that he wasn’t meant to get stabbed. It was a robbery gone wrong.” [11]

4. [62]

   During cross-examination, A said that he always carried a knife on him. [12] When asked what happened to his knife, A said that he had buried it in Birubi. [13] Police never recovered a second knife.

5. [63]

   In the course of his evidence, A agreed that on 13 August 2016, in the context of discussing the matter, he physically assaulted the applicant at her house, while her children were present. [14] He said that he punched the applicant; stomped on her head; tried to strangle her; and kicked her in the ribs. [15] A accepted that the argument which led to the assault occurred because the applicant said she was going to go to the Police.

6. [64]

   A also accepted that during the argument he held a knife to his own throat and threatened to kill himself, if the applicant went to the Police. [16] He also threatened to kill the applicant and her children. [17]

The Defence Case

1. [65]

   On 6 December 2016, the applicant participated in an Electronically Recorded Interview of a Suspected Person (“ERISP”) and gave evidence at trial denying having been at or near the deceased’s house at the time of the murder. The applicant further denied ever having been inside the deceased’s house.

2. [66]

   The applicant testified that, on 13 August 2016, A told her that he killed someone, which led to A and the applicant getting into a fight. [18] She said that A told her that he had lost control and stabbed someone. [19] The applicant testified that she told him that he was a “weak cunt” and that she would call the police. [20] It was at that point that A assaulted the applicant. The police were called and the applicant was taken to the hospital. She did not tell the police the reason for the fight, on her testimony, because she was scared that A would kill her and her children. [21]

3. [67]

   The applicant testified that she had given the gloves and balaclava that were found near the deceased’s house to A, but could not recall precisely when this had occurred. [22]

The Admissions

1. [68]

   As earlier stated, the police lawfully intercepted conversations between the applicant and her co-offender. It was the applicant’s evidence that the various admissions that were made were uttered because she was scared that A would hurt her; [23] A variously told the applicant what to say; [24] and the applicant was worried about losing her children. [25]

2. [69]

   The applicant submits that she falsely inculpated herself as a consequence of the violence and as a consequence of the fact that she thought A loved her. The applicant submits that the admissions were consistent with the allegedly false account of the applicant’s involvement concocted by A. This account was rejected by the trial judge in her remarks upon sentence.

3. [70]

   In a conversation on 7 September 2016 between the applicant and Daniel Savage, in the presence of A, the applicant asked about police presence at the premises in which the murder occurred. The applicant admits that the balaclava was in the backyard and that her DNA was on it. Further, she admits that her prints were all over the house as she did not have gloves on. The applicant expresses the opinion that she is “gone” and that she and A will “get done for murder”.

4. [71]

   While the applicant gave evidence that she made these admissions because A was present in the room and she was scared of him, the fact is that it is undeniable that the applicant made the admissions and did so at a time when it would have been difficult, if not impossible, for A to have perpetrated any violence against her or her children. At the very least, the applicant could have been silent as to her involvement, but she was not.

5. [72]

   The applicant relies upon the proposition that the house in which the offence occurred did not have “her fingerprints all over it”, but the presence or absence of fingerprints is not necessarily inconsistent with the applicant’s presence in the house. The applicant may or may not be aware that fingerprints are not always recoverable from all surfaces that are touched.

6. [73]

   The applicant’s DNA was on the balaclava, but the applicant, in her submissions to the Court, relies upon the proposition that the balaclava was not out the back of the house as she claimed in the alleged admissions. The balaclava, however, was found over the fence. To suggest, as does the applicant in these proceedings, that an admission of this kind would be so precise as to differentiate between the location of the balaclava in the backyard or over the fence is unrealistic.

7. [74]

   The most telling evidence in relation to the admissions are those admissions made by the applicant to her sister. The applicant’s sister gave evidence that she told the Police that the applicant had said to her “[A’s] done something bad and I was in the wrong place at the wrong time. Because I know about it I am scared to move.” [26]

8. [75]

   This is consistent, albeit without detail, with a conversation that was recorded in a lawfully intercepted call between the applicant and her sister, during which the applicant said:

9. [76]

   In another call on the same date, again intercepted lawfully by Police, the conversation between the applicant and her sister was to the effect that the applicant was required to “go on the run” because of what she had done when she was “scattered”; too many people know; her prints are all over the house; and then she said to the sister that she “just went to rob somebody and it went wrong and yeah, he had to go”. After being shocked the sister asked whether the applicant was joking, and the applicant replied: that she was deadly serious; that “all my fingerprints are over the house”; that she had done it “for the cash and then it went wrong”; that it was four weeks ago nearly; and “cause somebody we know, we had a fight with them, I reckon they have given us up”. [28]

10. [77]

    There can be little doubt that in the last summarised conversation, A, the co-offender, was present with the applicant at the time of the conversation. The applicant gave evidence that it was her co-offender’s presence, and her fear of her co-offender that caused her to say those things. The applicant denied that the admissions to her sister, Ms Hinds, were true. The truth or otherwise of the admissions is, if they were to be admitted, a matter for the jury.

11. [78]

    Further admissions were made to Joshua Sharwood, also in the presence of the co-offender. These were admissions to the effect that the applicant had stabbed the deceased in the eye. The applicant relies upon the proposition that the autopsy could not establish injuries to the areas of the eyes. However, the state of decomposition of the body, by the time the autopsy was conducted, may account for the absence of medical evidence.

12. [79]

    The admissions made to an acquaintance, Ms Hayley Spittles, were also in evidence. During the course of a conversation with Ms Spittles, the applicant volunteered that she had gone to the deceased’s premises, intending to rob him, and, after he fought back, she had stabbed him in the eye.

13. [80]

    The co-offender was not present during the course of the last-mentioned conversation and, even though it was suggested that it was Ms Spittles who commenced the conversation, that suggestion was emphatically denied by Ms Spittles. At the time this conversation occurred, the co-offender was back at the deceased’s house and the applicant told Ms Spittles that she was about to go back there as well.

14. [81]

    Further, as Ms Spittles had arranged to collect the applicant’s son from school, as she left the school, she observed the applicant walking from the laneway behind the houses, one of which was the crime scene. Further again, the applicant informed Ms Spittles that the deceased “was dead and I had to put a piece of newspaper over his head so I didn’t have to look at him”. [29]

15. [82]

    The evidence established that Ms Spittles, at the time that she made her statement to Police, was unhappy with the applicant and that she, Ms Spittles, went to Police because she had a grudge against her. These are matters that go to a jury’s assessment of whether the evidence of admissions by the applicant were true; not to the issues addressed by s 84 of the Evidence Act 1995 (NSW).

16. [83]

    The next conversations that were admitted were those to which Ms M (A’s cousin) was party. These conversations, generally, concerned the co-offender and not the applicant.

17. [84]

    In the course of the evidence given by Ms M, she agreed that A had made no mention of anyone else being involved in the stabbing other than him. The conversation with the applicant which was recounted by Ms M was a conversation in which the applicant did not make admissions as to being involved in the murder.

18. [85]

    One conversation was adduced in evidence which dealt with the conversation between Ms M and A, during which A implicated the applicant, at least insofar as he said she was present in the house but then suggested that the deceased had already been killed by the time the applicant entered the premises.

19. [86]

    Conversations with Adam Anderson were adduced in evidence. Mr Anderson was an acquaintance of the applicant, who lived in Queensland. During the course of one of the conversations, occurring on 16 September 2016, the applicant is recorded as having said to Mr Anderson: “did you know I’m a murderer?” And, later, “I’m coming to Queensland to hide”. At one stage the applicant suggested she was joking and that she was coming to Queensland to see Mr Anderson.

20. [87]

    In a second conversation, which occurred on 1 October 2016, the applicant told Mr Anderson that she could be going to gaol soon. She also informed him about the Medicare card that she possessed and that belonged to the deceased.

21. [88]

    Mr M, who was Ms M’s cousin, gave evidence relating to admissions given by the co-offender, but not the applicant. In the course of his evidence, Mr M agreed that A always had a knife tucked into his pants.

22. [89]

    Ms B was married to Mr C, who was the co-offender’s brother. Ms B had known the co-offender since he was about 10 years of age. Ms B gave evidence of three conversations, two of which involve the applicant.

23. [90]

    The first conversation was between the co-offender and Mr C, in a motor vehicle, on loudspeaker, which Ms B could hear as she was driving. In the course of that conversation, the co-offender said “We stabbed him. We went there over drug money and it turned bad”.

24. [91]

    As a consequence of the conversation, Ms B and Mr C drove to the applicant’s house. The co-offender was a “mess” and had been crying. The co-offender said: “We went to a house to collect money. We stabbed him. We weren’t sure he was alive”.

25. [92]

    The second conversation occurred when Ms B gave the co-offender and the applicant a lift. The co-offender sat in the front passenger seat and the applicant sat in the rear. During the course of the drive, the co-offender pointed out the house in which the murder had occurred and Ms B heard the applicant let off a little laugh. That conversation occurred about three weeks before the murder received news coverage.

26. [93]

    A third conversation with the applicant and the co-offender occurred because the latter two had been staying overnight at the house of Ms B and Mr C. Ms B took the applicant to the chemist and they were speaking about money, when Ms B said the most amount of money she had ever seen was from Centrelink. The applicant responded that the most amount of money she had ever seen was the cash that she had found in a subway bag under the bed of the deceased and that she, the applicant, and the co-offender had been giving taxi drivers $50 tips, because they had so much money.

27. [94]

    During the course of that conversation, the applicant told Ms B that she was at the deceased’s home to collect money for a drug debt that was owed to a friend; that the co-offender ran into the house; the co-offender grabbed the man and the man grabbed the co-offender; the co-offender turned around and stabbed the man; she, the applicant, also stabbed him. The applicant then referred to a process by which the applicant and the co-offender may have been able to get rid of the body. It was suggested to Ms B, in cross-examination on behalf of the applicant, that the conversation never occurred, with which suggestion Ms B disagreed.

28. [95]

    Mr C, whose relationship with the co-offender has already been described, also gave evidence as to conversations with the co-offender in which the co-offender made admissions. During the course of the conversations, the co-offender had said to Mr C that he, the co-offender, and the applicant attacked the deceased.

29. [96]

    Mr C also gave evidence of a conversation that occurred when he, Ms B (his wife) and the applicant were sitting at his kitchen bench. The applicant had told them that she got money from underneath the deceased’s bed. The applicant said she had tried to to decapitate the deceased but could not get through the bone. The applicant also said she tried stabbing the deceased in the eye.

30. [97]

    Evidence was adduced from a number of witnesses in which conversations with the co-offender were repeated and during which the co-offender did not implicate the applicant. Sean Drury was one such witness. The terms of the conversation with the co-offender suggested that it was the co-offender, alone, that committed the murder.

31. [98]

    Keith Anderson was called to give evidence about a conversation at the applicant’s house. In evidence he said he could not recall the conversation because of memory loss following a car accident. In cross-examination, and after being read the conversation he had recited to Police, Mr Anderson’s “memory recovered” sufficiently to remember comments by the co-offender which, on their face, would seem to exonerate the applicant.

32. [99]

    Shiloh Morris was an acquaintance of the co-offender. She had known him for about 10 years and had never met the applicant. Her evidence was to the effect that the co-offender had told her that it was the co-offender, alone, that had committed the murder. Nothing said to Ms Morris was inculpative of the applicant.

33. [100]

    That was also the effect of the evidence adduced through Michael Hassen. Michael Williams, who was a friend of Mr Savage, had been charged with using the deceased’s credit cards. He gave evidence that a conversation occurred about four weeks before Mr Williams had spoken to police. The statement to police was made on 15 September 2016. The conversation that had earlier occurred was between Mr Williams, the co-offender, the applicant, Mr Savage and Mr Anderson. It took place in the applicant’s house. The co-offender said that he had stabbed someone and killed him. The co-offender did not say exactly what took place.

34. [101]

    In cross examination, Mr Williams said: he was in gaol when he was interviewed by police; he had no involvement in the deceased’s death; and the co-offender had never mentioned the applicant being involved in the stabbing. When the conversation occurred in the applicant’s house, the applicant was at the back of the room and Mr Williams did not think that the applicant had said anything. She certainly did not make any admission as to being involved in the murder of the deceased.

Unreasonable verdict

1. [102]

   In dealing with the first ground of appeal, the applicant refers to the alteration in the Crown case from the initial proposition that the applicant stabbed the deceased and, thereby, performed an act that was a substantial contribution to the death of the deceased. During the course of the trial, the Crown, on the submission of the applicant, altered its case to include, as an alternative, murder on the basis of extended joint criminal enterprise. The alleged joint criminal enterprise, as put to the jury in the Crown’s closing address, was “stealing from the deceased’s house or robbing the deceased”. [30]

2. [103]

   The Crown did not go to the jury on the basis of joint criminal enterprise, simpliciter. Nor did the Crown rely upon the applicant aiding and abetting the murder.

3. [104]

   Primarily, the applicant relies, on appeal, on the proposition that it was not open to the jury to find, beyond reasonable doubt, that the applicant stabbed the deceased. Of course, there was evidence that the applicant did stab the deceased.

4. [105]

   The submission of the applicant, on appeal, is that the account of A, as to the applicant’s role in causing death, should not be believed. The sentencing judge did not accept it. Further, on appeal, the applicant submits that the evidence of A that the applicant took part in an act causing death, was not divisible and could not be used rationally as probative of the applicant’s involvement in a different crime, namely, a robbery or a break, enter and steal, during which the deceased was killed.

5. [106]

   The applicant submits that the Crown’s second pathway to guilt, extended joint criminal enterprise, depended upon demonstrably unreliable admissions and demonstrably unreliable accomplice evidence. Next, the applicant submits that the circumstantial evidence upon which the Crown relies, namely the DNA evidence on the balaclava and gloves, does not displace the doubt raised on the evidence otherwise adduced. The DNA evidence did no more than suggest that the applicant had contact with the items at some point in time.

6. [107]

   As to the discovery of the deceased’s Medicare card in the applicant’s house, the applicant submits that this circumstance does not advance the Crown case in circumstances where A, who admitted to having stabbed and robbed the deceased, had been living with the applicant at her house. The other evidence of the applicant’s involvement in the robbery or a break and enter was not supported by the objective evidence, otherwise adduced. Regardless of those aspects, the applicant submits that her admissions to different criminal enterprises, taken at their highest, do not establish the necessary mens rea for murder.

7. [108]

   The applicant submits that it was not open to the jury to find that the applicant foresaw the possibility that A would use a knife to cause really serious injury to the deceased. There was, in the submission of the applicant, insufficient evidence that the applicant even knew A had a knife.

8. [109]

   On the submission of the applicant on appeal, A’s evidence about his agreement with the applicant to rob the deceased was very limited, in relation to both the existence of an agreement and the extent of any such agreement. There was no evidence, according to the applicant, that the couple had discussed bringing a knife to the deceased’s premises.

9. [110]

   Nor did A give evidence that the applicant was apprised of him taking a knife. A had testified that when he carried a knife, he would tuck it into his pants and, on the applicant’s submission, his knife would, therefore, not have necessarily been visible to the applicant when they met.

10. [111]

    Even if it could be established that the applicant knew A had a knife, the applicant submits that there was insufficient evidence that the applicant could have foreseen the possibility that A might use the knife to cause really serious injury to the deceased. In addition to there being no evidence of any discussion between the parties about bringing a knife to the deceased’s premises, there was, on the applicant’s submission, no evidence of any discussion as to what A might do with the knife or, in particular, that he would use the knife to inflict grievous bodily harm or really serious injury.

11. [112]

    In fact, on the applicant’s submissions, A testified that the deceased “wasn’t meant to get stabbed. It was a robbery gone wrong”. The applicant relies on the fact that the evidence discloses that she and A had known each other for only two weeks prior to the murder. It is said, as a consequence of that shortness of time, that the applicant did not know A well and could not be said to have anticipated serious violence from A in the absence of any discussion about it.

12. [113]

    Essentially, the applicant submits that the admissions, which were capable, on their face, of underpinning an aspect of liability on the basis of extended joint criminal enterprise, were unreliable in no different manner than her Honour found the applicant’s admissions to an act causing death were unreliable. It is, in the submission of the applicant, specious to reason to proof of guilt by reliance upon certain aspects of the admissions, and not others, in circumstances where a doubt was raised at trial, arising from an absence of corroboration in respect of the entirety of the admissions.

13. [114]

    The applicant submits that, taking the applicant’s submissions at their highest, they did not prove the applicant contemplated that whilst agreeing and attending to rob someone, A would inflict grievous bodily harm. At no time did the applicant admit to knowing, at the relevant time, that A was armed with a knife. Reliance upon the admissions has given rise, so the applicant submits, to an unreasonable verdict.

14. [115]

    Further to the foregoing, the applicant relies upon her own credibility, which, on her submission, was intact on all of the issues of relevance. The applicant also relies on the good character evidence adduced to the effect that she had no criminal history of violence. [31]

15. [116]

    The applicant’s submissions on the unreasonableness of the verdict depend, at least in part, on the unreasonableness of a finding that any act of the applicant caused the death of the deceased and, on the alternative basis that the Court, on appeal, ought to have a reasonable doubt and should, therefore, consider that it was not open to the jury to find beyond reasonable doubt that the applicant contemplated that her co-offender would inflict grievous bodily harm (or kill).

16. [117]

    Moreover, each of those issues depends upon the doubt that the Court should have as to the truth of any admissions made by the applicant and, more fundamentally, whether those admissions should have been utilised in the trial. As a consequence, it is necessary for the Court, before dealing with the unreasonableness of the verdict, to deal with the issues raised as to the trial judge’s alleged errors in failing to direct as to causation; admitting the evidence of the applicant’s admission; and failing to leave manslaughter to the jury.

Causation

1. [118]

   The jury were provided with two documents summarising the elements of murder. [32] The document MFI 38 was a written direction, provided by the trial judge, as to the elements of the offence of murder and MFI 39 was a question trail for the guidance of the jury in reaching an appropriate verdict.

2. [119]

   Essentially, the applicant’s submission concentrates on MFI 39, to the exclusion of MFI 38. In MFI 38, the trial judge made clear that the Crown was required to prove beyond reasonable doubt that the applicant stabbed the deceased; that the act of stabbing was a voluntary act; and that the voluntary act of the accused, in stabbing the deceased, caused his death. The precise terms of the relevant written direction on the elements of the offence of murder are:

3. [120]

   The learned trial judge then dealt with the element of the possession of an intention to kill or to inflict grievous bodily harm. As a consequence, the learned trial judge directed the jury that any act of stabbing by the applicant was one that the jury had to be satisfied, beyond reasonable doubt, caused the death of the deceased.

4. [121]

   The question trail, posed by her Honour to assist the jury, did not deal separately with the aspect of the elements of the offence relating to requiring a decision that the stabbing by the applicant, if it had occurred, caused the death of the deceased. Her Honour did note that death was caused by multiple stab wounds and that this was an agreed circumstance.

5. [122]

   In order to establish that an accused is guilty of murder, the act committed by the accused, in this case the applicant, is required to be determined, beyond reasonable doubt, as causing the death of the deceased. [33] But there may be more than one act that causes death.

6. [123]

   An act is causative of the death of the deceased where the act substantially contributes to the death of the deceased. [34] In the dissenting judgment of Gaudron and Gummow JJ in Osland, their Honours, uncontroversially in terms of the majority judgment, said:

7. [124]

   In the course of the dissenting judgment in Osland and as part of the passage just recited, their Honours referred in footnote 33 to the judgment of the High Court in Royall, supra, and described the effect of it in the following terms:

8. [125]

   Royall, particularly the judgment of McHugh J, discusses each of the various legal tests for determining causation, being an act that substantially contributes to the death of the deceased. Those various tests have been described in a number of ways: the operating and substantial cause test, being where the assault by the accused is an operating and substantial cause of the deceased’s death, which applies even though some other cause of death may operate; the natural consequence test, being where the accused’s conduct caused the victim to act in a way which resulted in death and that act of the victim was the natural consequence of the act of the accused; and the reasonable foresight of consequence test, being where death is a reasonably foreseeable consequence of the actions of the accused. [36]

9. [126]

   None of the foregoing issues were explained in detail, or at all, by the trial judge in her charge to the jury. I do not suggest that any explanation beyond that relevant to the immediate circumstance was required. In this case, the issue is resolved by the usual test, namely, the operating and substantial cause. The legal tests to which I have just referred expand the common understanding of an act that causes death and allows a jury to find causation even though the act of the accused in question was not the predominant or operating cause of death.

10. [127]

    Even in circumstances where, on the evidence before the Court, the trial judge took the view that the most likely basis for any verdict of guilty, if there were to be one, would be extended joint criminal enterprise, once the trial judge leaves to the jury a verdict of murder on the basis of the direct act of the accused, it is necessary to explain that the act of the accused is required to be proved, by the Crown, beyond reasonable doubt, as having caused death, which the trial judge did.

11. [128]

    Further, a trial judge needs to explain to a jury what “causing death” means in those circumstances. The trial judge failed to leave, in the question trail (MFI 39), the issue that the stabbing was required to be proved, beyond reasonable doubt, as operative and substantial cause of the death of the deceased.

12. [129]

    For reasons that will be addressed later in these reasons, in my view, the lack of explanation did not cause a miscarriage of justice. The trial judge required the jury, on the question of murder caused by the direct act of the applicant, to find, beyond reasonable doubt, that the act of the accused caused the death of the deceased, Mr Whiteley. As a consequence of that direction, there was no error of law and, as a consequence of the matters to be addressed later in these reasons, on this issue, there was no miscarriage of justice.

The admissibility of the admissions

1. [130]

   The applicant submits that the trial judge should not have admitted the statements of the applicant, evidence of which was produced from witnesses and lawfully obtained listening devices. The applicant submits that s 84 of the Evidence Act excludes the admissions, because they were influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind. The terms of s 84 of the Evidence Act are as follows:

2. [131]

   As already stated, the applicant submits that the statements were coerced or the result of domestic violence directed at the applicant by her co-offender and, to some extent, directed at the co-offender by the co-offender in circumstances where he was aware that the applicant cared for him and would seek to protect him. Further threats, it is said, were made against the applicant’s children.

3. [132]

   There are a number of aspects of the operation of s 84 of the Evidence Act that require discussion. First, the provisions of s 84(1) of the Evidence Act require the satisfaction of the Court that is dealing with the admissibility of the statements. Secondly, the onus is on that party seeking to have the statement admitted, as a result of the requirement that the Court be satisfied that the admission and the making of it “were not influenced” by the conduct described in s 84(1)(a) or a threat thereof.

4. [133]

   As has been commented on a number of occasions, the statute must be read as a whole and the context in which s 84 of the Evidence Act is promulgated must be understood in construing the section. The Act renders all material that affects the probability of the existence of a fact (directly or indirectly) as admissible, assuming the fact is an issue in the proceedings. [37]

5. [134]

   The Evidence Act then excludes certain material and, relevantly, excludes hearsay, being statements made extra-curially that are admitted for the purpose of proving the truth of its contents. [38] To that exclusion of hearsay evidence, there are a number of kinds of hearsay to which the exclusionary rule does not apply. One of those provisions is that statements made, which are admissions, are not caught by the hearsay exclusion. [39]

6. [135]

   The exclusion of admissions influenced by violence and other conduct by the provisions of s 84 of the Evidence Act is, as a consequence, in that context.

7. [136]

   The provisions of s 84 of the Evidence Act arise as a result of the comments of the Australian Law Reform Commission (“ALRC”), [40] which commented:

8. [137]

   The terms of s 84 are not confined to improper conduct or threats arising from the conduct of an investigating officer and an admission is not admissible in any circumstances where the Court is not satisfied that the admission was not influenced by violent, oppressive, inhuman or degrading conduct of the kind to which s 84(1) of the Evidence Act refers. [41] In R v Spiteri-Ahern, I said:

9. [138]

   I adhere to the view expressed in R v Spiteri-Ahern, supra, and, in particular, that the provisions of s 84 of the Act are not limited to admissions made (or the content of admissions obtained) by the improper conduct of a person seeking to obtain an admission. Thus, even though the person who hears the admission is not intending to obtain an admission or to interrogate, the provisions of s 84 of the Evidence Act operate.

10. [139]

    In the current circumstances, the admissions adduced do not each fall into the same category and an issue arises as to the necessity to have a temporal relationship between the conduct described in s 84(1)(a) of the Evidence Act, or the threat thereof, and the making of the admission.

11. [140]

    Nothing in the provisions of the Act suggests the necessity for a temporal relationship. Nevertheless, in many circumstances, a delay between the occasioning of violence or any other impugned conduct, or the threat thereof, and the making of the admission may satisfy the Court that the admission was not influenced by the conduct in question.

12. [141]

    As earlier stated, the admissions are in different categories. For example, while the admissions to Mr Sharwood, were volunteered and outside of a context in which there was any compulsion to say anything in relation to the offence in question, the applicant testified that A told her what to say before she spoke to Mr Sharwood.

13. [142]

    The admissions to the applicant’s sister were, in the first instance, in the absence of the co-offender and in the second instance over the telephone in the presence of the co-offender. There is no suggestion that A told the applicant what she could tell her sister. If, as is suggested by the applicant, the applicant’s admissions have been influenced by impugned conduct of the kind described in s 84(1)(a) of the Evidence Act, or the threats thereof, then there is no explanation for a number of statements that are, on their face, inconsistent with such influence.

14. [143]

    The circumstances of the applicant’s admissions to her sister need expansion. First, as earlier indicated, the first conversation with the applicant’s sister arose out of an issue of which the sister was informed, seemingly, by their mother, the terms of such conversation not being available to the Court.

15. [144]

    Secondly, the admissions made to Ms Hayley Spittles were not made in the presence of the co-offender. Thirdly, as earlier reiterated, Ms Spittles was wholly unaware of any criminal activity until informed by the applicant that she and her co-offender had “done a break and enter”; the victim fought back and overcame the co-offender; so the applicant stabbed the victim and, thereafter, the co-offender stabbed him. These comments were, as stated, wholly unsolicited.

16. [145]

    The comments to Mr Adam Anderson were also unsolicited and made in the absence of the co-offender.

17. [146]

    As a consequence of the foregoing, only some of the comments uttered by the applicant, which contain inculpatory material, were said in the presence of the co-offender or, even arguably, as a consequence of some unstated pressure effected by the co-offender.

18. [147]

    I am satisfied that, in relation to the last mentioned admissions (namely, to the applicant’s sister; to Ms Spittles; and to Mr Anderson) the making of the admission and the contents thereof were not “influenced by” any of the threats or violent conduct towards the applicant, her children or the co-offender himself.

19. [148]

    Each of those admissions is not excluded by the provisions of s 84 of the Evidence Act. Further, the trial judge has not been involved in any error of law or incorrect decision in not being satisfied to the same effect.

20. [149]

    In those circumstances, the issue arises as to the admissibility of the comments made in the presence of A, being the admissions made to Mr Savage, to the co-offender himself, to Mr Sharwood, the second conversation with the applicant’s sister and the like.

21. [150]

    The Court, when an issue is raised about whether an admission was influenced by violence or other oppressive conduct, is required to look at the content of the admission and the fact that the admission was made. Either one of those aspects, if influenced by impugned conduct of the kind described in s 84 of the Evidence Act, would render the admission inadmissible.

22. [151]

    Where precisely the same comments have been made in circumstances that are admissible, the function the Court must undertake is to determine whether it is satisfied that the content of the admission or the fact that it was made was not influenced by the impugned conduct. Relevant to that question is the circumstance that the applicant, who objects to the admissibility of the admission, uttered words, in or to the same effect, often voluntarily and without encouragement, to others in circumstances where the impugned conduct has not influenced the content or the making of the admission.

23. [152]

    Further, some of the admissions, made to persons in the presence of the co-offender, were made in circumstances where the applicant volunteered the information: see, for example, the admissions to the applicant’s sister; Ms Spittles; and Mr Anderson.

24. [153]

    Over and above all of the foregoing, there are those admissions which are in relation to what may be considered to be “subsidiary facts”. For example, the comments by the applicant, as to the applicant possessing significant amounts of money as a result of finding it under the bed of the deceased, which admissions were made to Ms B and Mr C and were not influenced by impugned conduct.

25. [154]

    When one takes into account the comments of the applicant that were volunteered to persons with whom the applicant had a confidential relationship, such as her sister, Mr Anderson and Ms Spittles, there is no error in the admitting of all of the admissions, and the violent conduct did not influence either the making of the other admissions or the contents thereof.

26. [155]

    The foregoing discussion makes clear that the target of s 84 of the Evidence Act is very different from that of s 85 of the Evidence Act. The purpose of s 85 of the Evidence Act is to exclude admissions by an accused, made in the presence of investigating officials or a person who could influence whether a prosecution would be brought or continued, in circumstances where it is not unlikely that the truth of the admission was adversely affected.

27. [156]

    The purpose of s 85 of the Evidence Act, again the presumption in the Act being that the admission will be excluded, focuses on the effect of the presence of the investigating officials or other person on the reliability or truth of the contents of the admission. Neither truth nor reliability is an aspect with which s 84 of the Evidence Act deals.

28. [157]

    At times, during the applicant’s submissions on appeal, the issue of voluntariness, with which s 84 of the Evidence Act deals, was elided with reliability, to which s 85 of the Evidence Act refers.

29. [158]

    This is an important distinction. During the course of the submissions on behalf of the applicant, attention was directed at the relationship between Ms Spittles, for example, and the applicant for the purpose of showing that Ms Spittles had a grudge against the applicant; reported the alleged admission as a result of that grudge; and, therefore, the evidence of Ms Spittles may not be believed or the admission may not be reliable.

30. [159]

    But the reliability and truthfulness of the evidence of Ms Spittles is not a matter with which s 84 of the Evidence Act is concerned. Apart from admissions that fall within the class to which s 85 of the Evidence Act refers, whether Ms Spittles is to be believed; and whether it is likely that the applicant told Ms Spittles the truth, are matters for the jury and not a basis for excluding the evidence as a result of the operation of s 84 of the Evidence Act. So much is expressly dealt with by the Evidence Act. [43]

31. [160]

    In my view, this ground of appeal, being Ground 3 of the appeal, challenging the trial judge’s reception of the evidence of the applicant’s admissions, is not made out. The admissions made to the applicant’s sister, to Ms Spittles, to Mr Anderson and to Ms B and Mr C are admissions that were not influenced by any conduct, or the threat of any conduct, described in s 84(1)(a) of the Evidence Act.

32. [161]

    Once those admissions are received into evidence, given the nature of the statements made and the context of their making, the other admissions were not influenced by the conduct, or the threat of conduct, by the co-offender about which the applicant complains. There has been, on that account, no error of law and no miscarriage of justice.

33. [162]

    Having dealt with the substance of the issues raised under the rubric of s 84 of the Evidence Act, two other issues need to be addressed. First, s 84 of the Evidence Act operates to exclude admissions only if the applicant at trial had raised the issue of impugned conduct affecting the making or content of the admissions. [44]

34. [163]

    The applicant raised the issue at trial, but not before the time at which the exercise of the trial judge’s discretion arose. As a consequence, the trial judge never dealt with it. Further, since the provisions of s 84(1) operate on admissibility, the time at which such material needed to have been raised was before it was tendered. This could be done by objection or some other process. In the circumstances, the provisions of s 84(1) of the Evidence Act did not operate to render the admissions inadmissible.

35. [164]

    Further, again, as stated there were obvious tactical considerations that would have informed any objection, not the least of which was that a significant aspect of the Crown case was the evidence of A and the intercepted conversations between A and the applicant evidence the admissions but also evidence the violence of A and go to his credit and, because of inconsistent statements, his reliability.

36. [165]

    If, in other circumstances, counsel were to neglect to take objection and the evidence was inadvertently adduced, when the matter was sought to be appealed it would be counsel’s alleged incompetence causing a miscarriage of justice upon which an applicant would be relying. [45]

37. [166]

    Secondly, the applicant relies on s 90 of the Evidence Act. Primarily, s 90 of the Evidence Act confers on a trial judge discretion to refuse to admit evidence of an admission, if it would be unfair to an accused, in criminal proceedings, to admit it. The applicant, essentially, relies on the same material adduced in relation to the matters raised under the rubric of s 84 and dealt with above.

38. [167]

    The applicant did not object to the tendering of the evidence of the admissions. Rule 4 of the Criminal Appeal Rules applies. The fact, if it be the fact, that r 4 will not be used to prevent an applicant from raising an issue that would amount to a miscarriage of justice [46] is not precisely on point. In this case, evidence was adduced without objection. As stated, there may have been many tactical reasons for that approach.

39. [168]

    A trial judge is entitled to admit evidence in the absence of objection. This Court is a court of error. Error is required to be established before intervention will occur. In Picken, supra, there was misdirection by the trial judge. The error did not relate to evidence adduced without objection. Again, if objection was not taken for reasons of incompetence, as distinct from tactical reasons, an appeal would run on the basis of the incompetence of counsel causing a miscarriage of justice.

40. [169]

    I would apply r 4 and not allow reliance on s 90 of the Evidence Act or on the unfairness to the applicant of the adducing of the admissions. Nevertheless, for the reasons already given as to the applicability of s 84 of the Evidence Act, I do not consider the evidence of the admissions to be unfair.

Manslaughter

1. [170]

   Neither the applicant, nor the Crown, put to the jury facts, circumstances or submissions that relied upon the proposition that whatever occurred was manslaughter and not murder. The absence of such submissions does not conclude the result of this ground of appeal.

2. [171]

   In many respects this ground is inextricably interwoven with the submissions put on behalf of the applicant that the verdict of murder was unreasonable. However, it is necessary to deal with this aspect of the appeal before dealing with the suggestion that there was an unreasonable verdict.

3. [172]

   Manslaughter is a statutory alternative in every indictment for murder. While murder is and has always been a common law offence, it is now governed by the terms of s 18 of the Crimes Act 1900 (NSW). Murder is defined as requiring a state of mind, at the time that the conduct of the accused is performed, which causes the death of the victim, involves a reckless indifference to human life or an intention to kill or to inflict grievous bodily harm. If that state of mind is absent, assuming for present purposes that the act causing death was unlawful, the crime committed is manslaughter. In that sense, it is a punishable homicide other than murder. [47]

4. [173]

   The crime of manslaughter does not require separate charging when murder has been charged. If an accused is charged with murder, the jury has the capacity of returning a verdict of manslaughter. This is a consequence of the history that an unlawful killing was a felony at common law and murder and manslaughter are each a description of the one felony at common law. [48]

5. [174]

   Trial judges have traditionally referred to the availability of manslaughter on an indictment alleging murder as the “statutory alternative”, because, apart from the common law position to which I have just referred, it was the subject of an express legislative alternative in s 23(2) of the Crimes Act 1900-1982. The provision was omitted as a result of the enactment of the Crimes (Homicide) Amendment Act 1982 (NSW) and s 23 of the Crimes Act now only deals, relevantly, with manslaughter as a result of provocation.

6. [175]

   There are circumstances where, for obvious reasons, an accused will not address the possibility of a manslaughter verdict. Where the accused addresses the jury on the basis that the accused was not present when the crime was committed, it would be, ordinarily, difficult to argue in the alternative that, if the accused were present, the accused did not have the state of mind that would result in murder.

7. [176]

   There may be circumstances where, for example, the evidence of an accused so narrowed the hypotheses reasonably available to the finder of fact that manslaughter was an unavailable result; the accused, in those circumstances, was either guilty or not guilty of murder. [49] Other than in circumstances such as those to which the High Court referred in Baden-Clay, ordinarily, in a murder trial the alternative verdict of guilty of manslaughter must be put as an available verdict to a jury.

8. [177]

   Leaving aside, for present purposes, the actual infliction of an injury that was a major or substantial cause of the death of the deceased, to the extent that the jury was relying upon extended joint criminal enterprise, it is necessary to determine whether, on the evidence available to the Court, there is an available and reasonable possibility that the extended joint criminal enterprise was such that the participation of the applicant was not one in which the applicant contemplated the infliction of grievous bodily harm or the killing of the deceased.

9. [178]

   Where there is an allegation that an accused has participated in an extended joint criminal enterprise, the contemplation of the accused, as to what may have occurred, is crucial. If the agreement of the applicant, in these proceedings, were that there would be a criminal enterprise, namely to rob or to break, enter and steal from the deceased, as part of which the applicant contemplated the possibility of the infliction of injury, the question arises as to whether, on the evidence before the jury in these proceedings, the possibility that that contemplation involved the infliction of an appreciable risk of serious injury, but not an appreciable risk of really serious injury, means that the issue of manslaughter was one that should have been left to the jury.

10. [179]

    Regardless of the manner in which the applicant ran its case in answer to the charges below, unless the evidence amounts to one of the exceptional situations to which the High Court referred in Baden-Clay, the availability of a manslaughter verdict should be left to the jury and should have been left to the jury in these proceedings. In so doing, the Court would be determining that it was open for the jury to find the applicant guilty of manslaughter, through having engaged in a criminal enterprise whilst contemplating that there would, as a result of that criminal enterprise, be a possibility that an unlawful and dangerous act would occur which would carry with it an appreciable risk of serious injury. [50]

11. [180]

    As stated in Hoskins, supra, if there is evidence upon which a jury could find that the offence committed was manslaughter, rather than murder, then manslaughter must be left for the determination of the jury. Such a proposition turns on manslaughter being a “viable alternative verdict”. [51]

12. [181]

    Where there is evidence upon which a jury could have found the alternative verdict of manslaughter, then the failure of the judge to leave manslaughter to the jury is an error of law. As a consequence, an appeal on that basis is an appeal as of right.

13. [182]

    During the course of submissions, the Crown relied upon the proposition that the jury, in accordance with the directions, has found, beyond reasonable doubt, that the applicant contemplated that, as part of the joint criminal enterprise, there was contemplation by the applicant of the infliction of really serious injury or death. Really serious injury equates with grievous bodily harm and is one of the alternate states of mind for the crime of murder. As a consequence, on the Crown submission, the jury has found, beyond reasonable doubt, that the applicant’s state of mind was such that she is guilty of murder. On one view, such a finding is inconsistent with the availability of manslaughter.

14. [183]

    Nevertheless, where a jury has not been instructed that manslaughter is an available verdict, the jury may well take the view that the applicant is guilty of the unlawful killing of the deceased and is not prepared to acquit the accused of the charge preferred. If, in accordance with the law, the availability of an alternative verdict of guilty of manslaughter had been put to the jury, it is possible, on the evidence before the Court, for such a verdict to have been reached. Whether, in circumstances where the alternative has been put, the jury determines that the applicant is guilty of murder and not manslaughter, is fundamentally a matter for the jury, subject to issues associated with an unreasonable verdict.

15. [184]

    As a consequence of the foregoing, there has been error by the trial judge in not charging the jury with directions that allowed for an alternative verdict of manslaughter. This ground of appeal must be upheld.

16. [185]

    Before leaving this ground of appeal, it should be pointed out that notwithstanding the written directions and the summing up of the trial judge, Counsel at trial suggested neither that her Honour should sum up on manslaughter, nor that her Honour should leave it, as an alternative, to the jury.

17. [186]

    Further, the history of the written directions seems to establish that the direction, initially crafted by her Honour, relating to the availability of manslaughter, was deleted between the promulgation of MFI 36 and the promulgation of MFI 38. The deletion occurred in circumstances where Counsel requested that issues relating to self-defence and/or provocation should be deleted, which issues would give rise, if accepted by the jury, to a verdict of manslaughter.

18. [187]

    In deleting those matters, the more general provisions relating to manslaughter were also deleted. Given the acquiescence and express approval of Counsel to the terms of MFI 38, no criticism is made of her Honour on the terms of the written directions relating to the elements of the offence of murder.

19. [188]

    However, Rule 4 of the Criminal Appeal Rules applies. Given that the failure to leave to the jury the alternative verdict of manslaughter is an error of law, which may have caused a miscarriage of justice, in my view, the acquiescence and/or consent of Counsel at trial should not be decisive and this Court, on appeal, should not dismiss the ground on the basis of the provisions of Rule 4 of the Criminal Appeal Rules. [52] This ground of appeal should be upheld.

Unreasonable verdict

1. [189]

   A ground of appeal that raises the unreasonableness of the verdict requires the Court to examine the whole of the evidence and ask itself whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The focus in the foregoing is satisfaction beyond reasonable doubt, not whether the verdict was “open”. [53]

2. [190]

   As the High Court determined in M, in most cases where the appellate court experiences a doubt which a jury ought also to have experienced, the verdict is an unreasonable one. The only qualification, in that regard, is where the doubt experienced by the appellate court is one that is capable of being resolved by the jury’s advantage in seeing and hearing the evidence. [54]

3. [191]

   As stated, the focus of the Court’s attention must be the “unreasonableness of the verdict” and the term formerly utilised of “unsafe and unsatisfactory” has been disapproved. Whether the verdict was open to the jury does not, in itself, answer the question. The question is answered by whether the jury ought to have experienced reasonable doubt and that is answered by the conclusion as to whether the appellate court has a reasonable doubt that is not resolved by the jury’s advantage in observing the evidence. [55]

4. [192]

   Thus, the issue that the Court is required to answer is not whether there was evidence upon which a jury could have convicted, in the sense that there was evidence of each element of the offence, but whether it should have convicted or should have had a reasonable doubt. In other words, the question before the appellate court is whether, on all the evidence, it was open to the jury to be satisfied that there was no reasonable hypothesis inconsistent with guilt.

5. [193]

   In answering the question that is posed by such a ground of appeal, it is the evidence as a whole that must be considered, not each part of the evidence in a piecemeal fashion. [56] More importantly, in the circumstances of the current offence, it is the ultimate verdict that is examined by the appellate court, not any particular path to the verdict.

6. [194]

   In the current proceedings, as already indicated, the applicant relies upon two aspects of the evidence that give rise to doubt. First, the applicant maintains that the jury should have had a reasonable doubt as to whether the applicant physically stabbed the deceased and, in that regard, whether such stabbing was a substantial cause of the death of the deceased.

7. [195]

   Secondly, the applicant relies upon doubt as to the state of mind of the accused, by which term I refer to whether the jury could be satisfied, beyond reasonable doubt, that the accused contemplated the infliction of death or grievous bodily harm, as distinct from the infliction of serious injury that did not amount to grievous bodily harm.

8. [196]

   In some respects, the issue raised in relation to the stabbing and its causative effect relates to the unreasonableness of utilising the path of reasoning that the applicant’s own actions caused the death of the deceased.

9. [197]

   The trial judge, during the course of the sentencing proceedings and the remarks on sentence, came to the view that the basis upon which the applicant should be found guilty was the alternative path, being extended joint criminal enterprise. Dealing with that path, the applicant raises a number of issues.

10. [198]

    First, if, as the applicant submits, none of the admissions were before the Court or should have been before the Court, the Crown case is significantly weakened. Secondly, the applicant points to a reasonable doubt on the issue of extended joint criminal enterprise, on the basis that the evidence that the applicant was aware that the co-offender possessed a knife, at the time, was open to significant doubt. Thirdly, the applicant refers to a doubt that she says should have existed as to the contemplation of the applicant, even if there was a joint criminal enterprise to break enter and steal from the deceased, as to whether that contemplation went as far as an assault that was accompanied by an intention to kill or to cause grievous bodily harm.

11. [199]

    The third aspect above must be dealt with in light of the determination, earlier in these reasons, that manslaughter should have been left to the jury. As a consequence, I will deal with the unreasonableness of verdict on the basis that a verdict of guilty of murder or manslaughter would need to be unreasonable.

12. [200]

    Once it is accepted that the admissions were properly before the Court and the jury, the evidence against the applicant is substantial, if not overwhelming. Even if the admissions that were before the jury were confined to those admissions made voluntarily, or in an unsolicited manner, and in the absence of the co-offender, the evidence against the applicant as to a joint criminal enterprise and participating in the assault which ultimately caused death is overwhelming.

13. [201]

    Further, the co-offender’s evidence was to the effect that he always carried a knife. This evidence was corroborated by Mr M.

14. [202]

    Even though the applicant had known the co-offender for only two weeks, they were involved in an intimate relationship during the course of that two-week period and were living together. The proposition, in those circumstances, that the applicant was unaware that the co-offender always carried a knife is untenable.

15. [203]

    Certainly, it was open to the jury to draw the inference that the applicant was aware that the co-offender carried a knife and would have had a knife in the course of the planned break and enter. Moreover, that inference was capable of being drawn irrefragably, or beyond reasonable doubt. The foregoing should not be taken as a view that the applicant’s knowledge of A’s possession of the knife was necessary to be proved at that standard.

16. [204]

    Even if the jury should properly have had a doubt about the applicant inflicting an injury or, if the applicant did inflict an injury, that injury was a substantial cause of death, it was open to the jury to find that the applicant was guilty of murder on the basis of her participation in the joint criminal enterprise and on the basis of the doctrines of extended joint criminal enterprise.

17. [205]

    Further, it would have been open to have found guilt beyond reasonable doubt. In that conclusion, I do not exclude the possibility that it would have been open to the jury to conclude, beyond reasonable doubt, that as a result of the application of the principles applying to extended joint criminal enterprise, the applicant was guilty of manslaughter.

18. [206]

    The Crown case was, at least in part, circumstantial. The whole of the evidence is taken into account in determining whether any of the circumstances are proved. Moreover, the whole of the proved circumstances are considered in determining guilt beyond reasonable doubt. The whole of the evidence has been read. It was open to the jury to find guilt beyond reasonable doubt. I have no doubt on the evidence.

19. [207]

    As a consequence of the foregoing, the ground of appeal that relies upon an unreasonable verdict fails.

Conclusion

1. [208]

   The view I have formed is that error occurred by not leaving manslaughter to the jury as a possible verdict arising from the facts before the Court. Otherwise, the grounds of appeal against conviction fail and should be dismissed. In the circumstances, the appropriate order is to order a retrial on the indictment.

2. [209]

   As consequence of the foregoing, I would propose that the Court makes the following orders:

   1. (1)

      To the extent necessary, leave to appeal be granted;

   2. (2)

      To the extent necessary, leave be granted under Rule 4 of the Criminal Appeal Rules to argue the failure to leave manslaughter to the jury;

   3. (3)

      Ground 4 of the appeal against conviction be allowed;

   4. (4)

      All other grounds of appeal be dismissed;

   5. (5)

      The conviction of the applicant on the charge that between 6 August 2016 and 12 August 2016, at Lithgow in the State of New South Wales, she did murder Christopher Whiteley be quashed;

   6. (6)

      The indictment presented on 19 November 2018 and/or the aforesaid charge of murder, be subject to a retrial in the Supreme Court of New South Wales;

   7. (7)

      The matter is to be listed in the Supreme Court Arraignment list on 6 November 2020.