Conway v R

1. [1]

   BASTEN AJA: On 31 October 2022, the applicant, Ian Matthew Conway, was put on trial in Newcastle on a charge that on or about 8 March 2021, he did murder one Christopher Ward. On Friday 11 November 2022, the jury returned a verdict of guilty of murder. The present application is for leave to appeal against the conviction. As the appeal is not limited to a question of law only, the applicant requires leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Given the seriousness of the charge and the fact that he was sentenced to imprisonment for 16 years, it is appropriate to grant leave to appeal against the conviction. (Mr Conway will be referred to as the appellant hereafter.)

2. [2]

   The appellant relies upon two grounds of appeal, namely (i) the trial judge failed to discharge the jury on the basis of evidence given by the main Crown witness indicating that the appellant had a propensity for violence and had committed robbery, and (ii) the conviction was unreasonable and unsupportable on the evidence.

Factual background

1. [3]

   The evidence as to the circumstances of Mr Ward’s death fell within narrow confines. It was not in dispute that Mr Ward died as a result of internal bleeding following the thrust of a knife into his abdomen. There was no dispute that the wound was caused by the appellant. The prosecution case was that the appellant inflicted the wound whilst Mr Ward was seated on a couch in the living area of the appellant’s unit. The defence case was that the appellant responded when Mr Ward was walking towards him, holding a knife. The appellant claimed he acted in self-defence.

2. [4]

   The ground floor area of the appellant’s unit at Broadmeadow Road, Broadmeadow contained a kitchen at the rear, a lounge room and a garage facing the street with a door opening into the lounge room. In the lounge was a couch and, at the time, a low coffee table in front of the couch. The couch was facing the door into the garage. There was a bedroom area upstairs.

3. [5]

   The unit was occupied by the appellant and his wife, Katrina Coghlan. Ms Coghlan was in the unit at the time of the stabbing, but she was unwell (and indeed died during the trial) and did not give evidence. The fourth person in the unit at the time of the stabbing was Renee Lee who occupied an apartment at the rear of the same building. Ms Lee gave evidence in the prosecution case; the appellant gave evidence in his own defence. The only other witness who gave significant evidence was Dr Benjamin Harding who conducted an autopsy on the deceased Christopher Ward on 10 March 2021.

4. [6]

   The first ground of appeal, addressing the failure of the trial judge to discharge the jury, turned on remarks made by Ms Lee in the course of her cross-examination. However, the remarks should be viewed in context, and therefore by reference to the course of and content of her evidence, and indeed other aspects of the trial. The second ground of appeal requires the court to review all the material evidence. It will be convenient to address the evidence given by each of three significant witnesses, in the order in which they were called.

Prosecution case – Renee Lee

1. [7]

   Ms Lee gave evidence that she had been invited to the unit by Ms Coghlan. There were drugs available at the unit and she saw Mr Ward inject himself. She said that he then became, “more vocal, a bit erratic. Just going into the garage, yeah, just like came out of his shell. Later on he was on all fours, barking at the front door, like a dog”. [1] She said that she was offered drugs but did not partake. She did not see anyone else consume drugs, although she thought that Ms Coghlan and Mr Conway may have been affected. [2] She was unable to describe conduct or conversations which provided support for that view, but the appellant agreed he had taken methylamphetamine that afternoon.

2. [8]

   Ms Lee said that she was sitting at the end of the three-seater couch and that Mr Ward came and sat next to her. By that stage he was “quite quiet”. [3] He sat very close to her, “butted up” against her. [4] She then described the appellant coming over towards them carrying two knives. She was not sure whether he came from the garage or the kitchen. He put a blade down on the arm of the chair next to her, and said, apparently to Mr Ward, “[l]et’s have a muck around”. [5] The evidence continued: [6]

3. [9]

   Ms Lee then described Mr Ward pulling out a small amount of cannabis and preparing to chop it up to put in a bong.

4. [10]

   Ms Lee then described the knife that the appellant lunged with as a “hunting knife”. She said he was standing on the opposite side of the coffee table which was about 40 cm from the lounge. The examination continued: [7]

5. [11]

   Ms Lee then described the appellant as “pacing a bit, panicked, didn’t know what to do”. [8] The examination continued: [9]

6. [12]

   The recording of the triple-0 call was then admitted and was about to be played to the jury when the judge noted that Ms Lee, who was at an advanced stage of pregnancy, appeared to be distressed. She was invited to leave the room while the recording was played, which she did. After she returned to the witness box, Ms Lee was given a plan of the ground floor of the unit and marked where the knife was placed on the arm of the couch, where she was sitting, where Mr Ward was sitting next to her and where the appellant was when he lunged towards Mr Ward with the knife.

7. [13]

   Ms Lee also gave evidence that she visited the local pharmacy for medication the following morning and saw the appellant sitting in the medical centre watching the news. Her evidence continued: [10]

8. [14]

   In the course of cross-examination, Ms Lee was taken to aspects of her police statement and the following exchange took place: [11]

9. [15]

   Ms Lee was then challenged as to her memory of particular aspects of the events and the cross-examiner put to her: [12]

10. [16]

    Ms Lee was then asked to describe how he (Mr Ward) was sitting on the lounge; the cross-examiner continued:

11. [17]

    The judge intervened:

12. [18]

    The jury then left the room and in their absence the judge continued to reason with the witness, explaining that the cross-examination was not a personal attack and asking her to tolerate it for a few more minutes. She agreed. After some brief further cross-examination, Ms Lee was excused for the day and asked to return with a support person the following morning. Another witness was interposed.

13. [19]

    The following day, the cross-examiner obtained agreement from Ms Lee that she had told lies to the police and suggested that she did so to protect herself: [13]

14. [20]

    She was then cross-examined about an earlier event where she and her partner had stolen a phone. She did not deny the offending occurred, but gave an explanation as to her limited role in it.

15. [21]

    Ms Lee was also cross-examined about statements the appellant had made following the stabbing: [14]

16. [22]

    Early in the cross-examination, counsel sought agreement that she was at the appellant’s apartment because she was interested in drugs. The cross-examination continued: [15]

17. [23]

    The first issue raised on the discharge application relied on the statement that the appellant and his partner had a “horrifying” reputation.

18. [24]

    Later, counsel returned to repeat the line of cross-examination: [16]

19. [25]

    The cross-examiner suggested, with a lack of precision as to timing, that there was an argument between the appellant and Mr Ward. There was an attempt to place it by reference to an occasion when the appellant was coming down from the upstairs part of the unit. Ms Lee denied that she saw anyone go upstairs. The cross-examination continued: [17]

20. [26]

    The reference to the appellant and his partner having “a reputation of hurting people” was the second statement which was relied upon as part of the discharge application.

21. [27]

    The cross-examiner returned to the events following the stabbing: [18]

22. [28]

    The last reference to thinking that the appellant might rob her and that was his modus operandi formed the third basis of the discharge application.

Ground 1 – discharge application

1. [29]

   A complaint on appeal from a conviction as to a failure by the trial judge to discharge the jury invokes the third limb of s 6(1) of the Criminal Appeal Act, namely that, “on any other ground whatsoever there was a miscarriage of justice”. Subject to one qualification which will be addressed below, it is well- established in the jurisprudence, both of the High Court and this Court, and other intermediate courts of appeal in Australia, that a ground which gives rise to a miscarriage of justice may be the subject of the proviso if the court considers that “no substantial miscarriage of justice has actually occurred”. The importance of the two-step procedure is that, whilst the convicted person must satisfy the court that there has been a miscarriage, once that occurs the onus of persuasion moves to the Director to establish that there was, in the actual circumstances, no “substantial” miscarriage.

2. [30]

   The qualification arises from a statement in Crofts v The Queen [19] that,

3. [31]

   That there was a conflation of the two limbs in s 6(1) seems reasonably clear. In any event, the conventional approach to the third limb of s 6(1) has subsequently been reaffirmed by the High Court in Hofer v The Queen. [20] Similarly, in Patel v The Queen, [21] a case involving an application to discharge the jury on the basis of a change in direction in the prosecution case, the High Court reaffirmed that the issue was whether “there was a miscarriage of justice”. [22] After reviewing the evidence, the Court concluded that there had been “a miscarriage of justice”. [23] Subject to consideration of the proviso, the Court held that “the miscarriage warrants an order for a new trial”. [24] The Court then proceeded to apply the proviso, by asking whether the Court was persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused’s guilt of the offence. [25]

4. [32]

   If Crofts dictated a different approach, it is difficult to accept that the High Court would not have said so in Patel. In fact, Crofts was not referred to in Patel. That is unsurprising: if Crofts intended to make a major change in the understanding of how the principles governing miscarriage of justice and the operation of the proviso should apply with respect to a miscarriage where inadmissible evidence had been allowed to go to the jury, and a discharge application refused, the Court would surely have said so.

5. [33]

   The issue as to whether Crofts had adopted a different approach in circumstances where there had been a discharge application based on inadmissible evidence was raised before this Court in Hamide v R. [26] The reasons of Bell P (with whom Davies J agreed) identified a submission on behalf of the Director that the passage in Crofts “conflates the proviso test with the miscarriage test”, [27] but concluded that it was not necessary to determine whether that was so because the Director had not invoked the proviso in Hamide. [28] The state of the authorities was most recently reviewed by Dhanji J in Ilievski v R; Nolan v R (No 2), [29] concluding that:

6. [34]

   In the present case, the Director did invoke the proviso and, if it were necessary to resolve the issue, in the interests of fairness to the appellant, the conventional approach should be applied and the Director should bear the burden of satisfying the Court that any miscarriage identified was not substantial in the circumstances. The proper question for this Court is whether, viewed objectively, the impugned evidence had a prejudicial effect sufficient to deprive the appellant of a fair trial, [31] or which could realistically have affected the verdict of the jury, in accordance with the principle articulated in Edwards v The Queen [32] and Hofer v The Queen. [33] That requires reference to the specific language of the inadmissible evidence, together with a consideration of the context in which it came before the jury and the directions in relation to it. It is also instructive to identify the matters relied upon by the trial judge in rejecting the discharge application. Statements seen in a transcript and analysed retrospectively may appear in a different light to that appreciated by the trial judge listening to the evidence unfold as the jury did.

7. [35]

   The discharge application was not made until Monday, 7 November 2022, although the first of the impugned statements was made on the afternoon of Wednesday 2 November. The second and third statements were made on Thursday, 3 November. As the trial judge noted, the initial indication by email to the judge’s chambers on the Monday morning was that the offending passages be struck from the transcript before it was provided to the jury. It was only on further reflection that an application to discharge the jury was added. [34]

8. [36]

   The submissions for the appellant in this Court stated that the “criticism [by] her Honour as to the ‘timeliness’ of the application was unfair given the fact that each of the impugned statements occurred in cross-examination, in a fast-paced trial, when the order of witnesses was varied to suit the court and Crown and when the cumulative effect of the evidence, was necessarily to be assessed after the transcript was provided”.

9. [37]

   This submission should not be accepted in its terms. What the trial judge in fact said in her reasons was as follows: [35]

10. [38]

    This was not a criticism of counsel: it was an inference drawn by the judge from the conduct of counsel, not that he was dilatory, but rather that his initial impressions did not accord with his later complaint. The judge had formed a similar view herself, at the time the evidence was given. There is no doubt that the impression of the trial judge who hears the evidence and is conducting the trial is a significant consideration on appeal. [36]

11. [39]

    Further, the judge did not accept that Ms Lee’s “utterances were deliberately made to malign the character of the accused”. [37] Issue was taken with this assessment in the written submissions for the appellant. Counsel contended: [38]

12. [40]

    This submission was not founded on any plausible reading of Ms Lee’s evidence. No doubt Ms Lee had a certain view of the characters and propensity for violence of the appellant and his wife, which she identified, but only in response to questions where she was asked for an explanation of her conduct towards them. That conduct included visiting their unit on the afternoon in question, and explaining why she had told lies to the police and others investigating the stabbing, statements which were in effect protective of the appellant. In her evidence, she referred to him as “Ian” and stated that most of her conversation whilst at the unit that afternoon was with him. Mr Ward, whom she had not previously met, was abusive of both her and Ms Coghlan and the appellant, at the women’s requests, commented on Mr Ward’s conduct. It is difficult to draw any intention to malign the appellant from Ms Lee’s evidence.

13. [41]

    Indeed, the statements which were adverse to the appellant did not have the effect of painting Ms Lee as “honest” or as a victim of circumstances. She no doubt considered herself a victim in that, on the afternoon of her birthday, she had witnessed a man being stabbed, ultimately fatally. Whether or not that occurred whilst she was sitting on the couch beside him, her response was undoubtedly genuine and plausible. The trial judge dealt with similar submissions in the following terms: [39]

14. [42]

    That description and the conclusions drawn by the trial judge accord with the impression conveyed by the transcript, and especially the passages set out above. A third matter identified by the trial judge, undoubtedly correctly, was explained as follows: [40]

15. [43]

    Assuming for present purposes that the evidence might have been excluded had objection been taken, the context, set out above, confirms the judge’s conclusion that the evidence was responsive to the questions asked. The explanation with respect to the first passage given by the trial judge was sufficient. The second statement might have been considered as an explanation for her denial, but it came in response to a question suggesting that she did not see what had happened because she was not sitting on the couch. The explanation that she kept her back to the wall because “Ian and Katrina have got a reputation of hurting people” went further than the immediate question required, and the judge intervened to say, “just try to answer the questions”. There was, however, a consistency in her evidence that she did not trust the appellant or Ms Coghlan: her lack of trust was relevant to the suggestions pressed in cross-examination, and it is difficult to accept that her reasons for mistrusting them would not be expressed in some form.

16. [44]

    The explanation of her fear of being robbed was a response to an open challenge to her mistaken evidence that she did not take her phone to the apartment. [41] Having obtained the concession that she was mistaken, counsel, by the very next question, at least implicitly invited an explanation as to why she had made a false statement in earlier evidence. In effect she repeated, with consistency, her earlier explanation that she was scared of the appellant and his wife.

17. [45]

    The remainder of the interlocutory judgment considered possible solutions to the “problem of the evidence as it was given”, namely, to redact the transcript which was provided to the jury and to give a direction concerning their use of evidence of reputation. In considering whether redaction would be effective, the judge reasoned: [42]

18. [46]

    Turning to the question of directions, the judge noted that there were not only the three glancing references to reputation for violence, but also extensive evidence of drug use which needed to be addressed. She continued:

19. [47]

    Having had regard to the whole of Ms Lee’s evidence, that reasoning is entirely persuasive. That is not to say that the jury would necessarily have believed all of her evidence: that assessment must await a consideration of the evidence given by the appellant in his own defence and the evidence of the forensic pathologist. However, it may be noted at this stage that the appellant himself gave evidence of having stabbed Mr Ward in the abdomen. In other words, the serious act of violence which led to Mr Ward’s death was not in dispute. The issue as to whether he acted in self-defence (as he claimed) or acted gratuitously, in the manner described by Ms Lee, was the true issue in the trial. In resolving that issue, the extensive cross-examination of Ms Lee as to why she was in the unit that evening, directed to establishing that she went there to participate in consumption of illicit drugs, not only invited an alternative response, but emphasised the role that illicit drugs played in the lives of the appellant and his wife, as well as that of Mr Ward. If Ms Lee believed that the appellant had a tendency to violence, it cannot have been a significantly prejudicial consideration in the minds of the jury, given the context in which the three passing references were made. Afterall, this was a man, who, on the evidence of Ms Lee, threatened on two occasions to slit Mr Ward’s throat in order to ensure that he did not identify the appellant as his assailant.

20. [48]

    The step proposed by the trial judge of redacting the transcript was taken. Further, a careful but constrained direction was given to the jury, placing the evidence of reputation in the same context as the evidence of drug-taking, to which no objection is taken in the grounds of appeal.

21. [49]

    One further submission should be noted, in order to be rejected. Counsel for the appellant submitted in writing: [43]

22. [50]

    The proposed connection was fanciful. Dr Robertson gave evidence of the results of an analysis of blood samples taken from Mr Ward, both before and after his death. Several drugs were identified, with their likely effects particularised, having regard to the amounts ingested and the time since they were ingested. He referred generally to the effects of methylamphetamine, stating that it was “possible that agitation and aggression could manifest in someone with underlying aggression”. [44] He suggested that “behavioural controls are, in effect, stripped away, and people do things that they would otherwise not do [if] they were sober or unaffected by drugs, similar to alcohol”. [45]

23. [51]

    If the jury drew any inference from that evidence in relation to the conduct of the appellant, it might have been that he lashed out violently (as he did) without any real belief in Mr Ward having threatened him. The relationship with some abstract reputation for violent behaviour was not, in the circumstances, significant.

24. [52]

    Reading the transcript of Ms Lee’s evidence supports, without qualification, the assessment made by the trial judge. Viewed in the context of the trial, the impugned evidence was not capable realistically of affecting the jury’s verdict. Accordingly, it did not give rise to a miscarriage, as explained further below in addressing ground 1.

Expert evidence

1. [53]

   As noted above, a forensic pharmacologist, Dr Robertson, was called to give evidence with respect to drugs found in the blood of Mr Ward. Cross-examination on behalf of the accused sought to establish the effects of methylamphetamine, Xanax and Rivotril on a person, in combination with alcohol, although no alcohol was found in Mr Ward’s blood. [46] Dr Robertson gave careful evidence, in response to general questions as to the nature and effect of the various drugs. As to the combination of methylamphetamine and Xanax, he concluded that “you end up with ultimately a stimulated disinhibited person”: [47]

2. [54]

   This evidence was adverted to, though quite briefly, by counsel for the appellant in his final address to the jury. The evidence was that the appellant had taken methylamphetamine, but was not as affected as Mr Ward. There was, on the basis of Ms Lee’s evidence, no suggestion that the appellant, prior to producing the knives, had been aggressive; but the evidence of Dr Robertson was relied upon by the defence to contend that it was likely that Mr Ward, being erratic, had been aggressive towards the appellant. Counsel said of Dr Robertson’s evidence: [48]

3. [55]

   The other expert called in the prosecution case was Dr Harding, the forensic pathologist. The critical evidence that he gave, for present purposes, was that the “tract of the stab wound was front to back in a near horizontal plane”. [49] At the end of his examination the prosecutor asked: [50]

4. [56]

   In cross-examination, counsel for the appellant sought to raise a doubt as to the accuracy of the description of the wound as 24mm in depth, and had the witness confirm, without elaboration, that the direction of the wound was “horizontal”. He did not seek to press upon the witness the likelihood that the deceased was standing at the time the wound was inflicted. In addressing the jury, counsel noted that the wound was “in a horizontal plane” and submitted that it was unlikely that the wound occurred whilst Mr Ward was seated on the couch. [51] A later reference to Dr Harding’s evidence dealt with the depth of the wound as suggesting it was inflicted with limited force behind the knife. [52]

Evidence of the appellant

1. [57]

   The appellant gave evidence that he had placed a kitchen knife on the coffee table in front of Mr Ward. He said that he did it at a time when Mr Ward was looking for his drugs and, when he could not find them, complained, implying that he had been robbed.

2. [58]

   The appellant gave evidence that he had been talking about boxing gear with Mr Ward: [53]

3. [59]

   The appellant then gave evidence that he went into the garage. His evidence continued: [54]

4. [60]

   The appellant said that the knife had been hanging in a sheath on the back of the garage door. He was then questioned about how Mr Ward approached him: [55]

5. [61]

   His evidence continued:

6. [62]

   He gave a demonstration indicating a right hand extended for about 50 cm, with the blade held flat. [56] He was then asked: [57]

7. [63]

   In the course of cross-examination, he was asked about taking the knife from the kitchen and placing it in front of Mr Ward: [58]

8. [64]

   The appellant was cross-examined for some time as to why he had left the premises and told the police that some other person must have stabbed Mr Ward. He was asked why he had picked up the knife which Mr Ward had dropped on the ground and replaced it in the knife block, and left the knife with which he had stabbed Mr Ward on the side of the sink in the kitchen. The appellant was unable to recall whether he put the knife near the kitchen sink where the police found it, stating, “I don’t know if I put it there or not” and “I don’t remember a hundred per cent”. [59]

Grounds of appeal

1. [65]

   The view expressed above that the prejudicial statements made by Ms Lee would not have deprived the appellant of the possibility of an acquittal is confirmed by the subsequent history of the trial. The central issue was whether the evidence of the appellant might have raised a reasonable doubt in the minds of the jury as to the account given by Ms Lee. That is implausible for a number of reasons. First, on the appellant’s own evidence, when accused of ripping off a friend by stealing his drugs, he picked up a knife and offered it to the friend while saying he would fight him with his bare hands. Secondly, on his own account, when his friend picked up the knife and approached him, he immediately grabbed a knife himself and struck the first (and only) blow in circumstances where he could not describe any direct threat or menacing statement or conduct. Thirdly, he gave evidence that he himself had been stabbed in the past and “it’s just not nice”. [60]

2. [66]

   Fourthly, it is most unlikely that Ms Lee’s comments about the appellant’s reputation for violent conduct affected the jury’s assessment of his account of the stabbing. On the one hand, it was itself a violent act; on the other hand, it was taken in response to an implicit threat by a man carrying the very knife which the appellant had earlier placed in front of him with an invitation to use it on him, whether the invitation was a bluff or otherwise. Rather, the jury would almost certainly have been focused upon the plausibility of the two accounts, as to which something more will be said in considering ground 2.

3. [67]

   Fifthly, the jury were given a firm direction by the trial judge in terms to which no objection was taken at the trial, or on appeal. There were, indeed, several factors which the judge identified in directing the jury to act “impartially, dispassionately and fearlessly”. [61] That direction too must be read in context and the relevant part of the summing up read as follows: [62]

4. [68]

   The direction was unequivocal, and did not repeat or otherwise draw attention to the detail of Ms Lee’s evidence as to the appellant’s reputation. In the context of the other matters about which the jury were properly warned, the reputational evidence was of little, even minimal, significance. It did not give rise to a miscarriage in the trial. For these reasons, the application of the proviso with respect to a possible miscarriage of justice, relied on by the Director in this Court, does not arise.

5. [69]

   Ground 2 alleged that the verdict was unreasonable or unable to be supported having regard to the evidence, under the first limb of s 6(1) of the Criminal Appeal Act. This ground requires that the court form its own view, based upon an independent assessment of the evidence as to whether it entertains a reasonable doubt because, if it does, it is a doubt which a reasonable jury ought to have experienced. [63] However, if the court has such a doubt, it must also consider whether it is one which the jury, having had the benefit of seeing and hearing the witnesses, could properly have resolved. If there is some inherent unreliability affecting the prosecution case, the doubt will remain one which the jury should have entertained.

6. [70]

   The prosecution case turned on acceptance of the evidence of Ms Lee. The assessment required by ground 2 must commence with her evidence.

7. [71]

   First, there were aspects of the account given by Ms Lee which may have seemed implausible, but which were not in fact disputed by the appellant. One such fact was the placing of a knife near or in front of Mr Ward, with an invitation to use it against the appellant, either mucking around or as a bluff. There were differences as to whether the knife was placed on the coffee table in front of Mr Ward, or on the arm of the couch on which he was sitting at the time. There was not, however, a dispute that he was in fact sitting on the couch when the knife was offered to him. Nor was there any dispute that the appellant at some stage armed himself with another knife. On Ms Lee’s account, he had two knives at the time that he placed one near Mr Ward; on his account, he took the second knife in his hand only after being approached by Mr Ward who was holding the first knife.

8. [72]

   Secondly, Ms Lee’s evidence was not that the appellant behaved aggressively or abusively towards her; rather, she said that he engaged in conversation with her and that it was Mr Ward who made offensive comments about the appellant’s wife and about Ms Lee herself. The appellant agreed that they had asked him to tell Mr Ward to stop such behaviour. Ms Lee gave evidence that, although they were close neighbours, they hardly knew each other. It was Ms Coghlan who had invited her to the unit. However, it was common ground that the appellant had blood on his shirt and had asked Ms Lee to wash it for him, which she did. Furthermore, it was Ms Lee who insisted that the appellant leave the premises immediately because the police were coming. At that stage she said that he was panicking, a judgment with which he agreed. (He did not agree that he had threatened to slit Mr Ward’s throat to stop him “dobbing”.) This evidence did not support the submission that Ms Lee had some animus towards the appellant, or that she was seeking to minimise her own involvement.

9. [73]

   Thirdly, although there were various attacks on Ms Lee’s character and involvement in the events of the evening of 7 March and the following morning, there was no plausible basis for implying a motive to harm the appellant. Both had been involved in lying to the police in the immediate aftermath of the stabbing and Mr Ward’s death, but the explanation for that in the appellant’s case was, as he later accepted, that he was the person who had thrust the knife into his friend’s abdomen. Ms Lee’s lies had been protective of the appellant. Her account in evidence was detailed and her cross-examination was extensive. So far as it is possible to judge such things from the transcript, her evidence was consistent and plausible. She was clearly affected by having to recount in detail the traumatic events of the evening which resulted in the death of Mr Ward.

10. [74]

    By contrast, the appellant’s evidence was sparse as to detail and barely plausible. On his account, Ms Lee was not in the room when the confrontation with the knives took place. He denied that she was on the couch beside Mr Ward when he (the appellant) sought to engage with Mr Ward and placed a knife in front of him. Further, his account of Mr Ward approaching him in a manner which led him to strike him with a knife was manifestly lacking in detail. He did not suggest that Mr Ward said anything to him or that he noticed anything threatening about his demeanour. Even the way in which he described him holding the knife was at least in part passive.

11. [75]

    Reading the whole of the evidence, I do not entertain a reasonable doubt as to the prosecution case. The jury might have disbelieved key aspects of Ms Lee’s evidence, but clearly they did not. The appellant’s evidence does not raise a reasonable doubt as to the truth and reliability of the evidence of Ms Lee. Again, it may have been open to the jury to accept the possibility that the appellant was telling the truth, but clearly they did not. Ms Lee’s evidence was not inherently implausible, or inconsistent with objective facts. It is not necessary to consider whether there is some doubt arising from the evidence which might be resolved by the jury in favour of conviction. Ground 2 must be rejected.

Conclusion

1. [76]

   The appellant should have leave to appeal, but the appeal must be dismissed.

2. [77]

   CAVANAGH J: I have had the benefit of receiving the judgment of Basten AJA. I agree with the orders which his Honour proposes for the reasons his Honour sets out. I am satisfied that the evidence about which the complaint is made did not lead to a miscarriage. Further, I have carried out my own independent review of the record and I am satisfied that the verdict was open to the jury. There is really no basis on which it could be concluded that the jury ought to have had a doubt about the applicant’s guilt such as to set aside the verdict.

3. [78]

   DHANJI J: I agree with Basten AJA.