Cavanagh v R; McIvor v R; O’Keefe v R

1. [1]

   ROTHMAN J: Before the Court is an appeal by each of three alleged co-offenders, Barry Paul Cavanagh (Cavanagh), Nathan McIvor (McIvor) and Sean David O’Keefe (O’Keefe). Each of them was convicted after a joint trial before a jury.

2. [2]

   One of the applicants, Nathan McIvor, seeks leave to appeal his conviction and sentence on the following grounds:

3. [3]

   The grounds of appeal upon which the co-offender, Applicant O’Keefe, seeks leave to appeal relate only to conviction and are as follows:

4. [4]

   Applicant Cavanagh seeks leave to appeal only the conviction on the following ground:

5. [5]

   These reasons deal with the appeal ground that the verdict in each case was unreasonable. On the other grounds raised, I have had the advantage of reading in draft the reasons for judgment of R A Hulme AJ and, for those reasons would dismiss all those other grounds. On the unreasonable verdict ground, I reiterate that the evidence in each case is different but, in the view I take, not so that a different outcome should result.

Procedural and Factual Summary

1. [6]

   On 16 February 2021, the applicants were convicted by a jury of the murder of Jamie Phillips (a male). The trial, which occurred in January and February 2021, was presided over by Davies J.

2. [7]

   On 25 June 2021, Davies J sentenced the applicants in a manner which is best represented by the following table:

3. [8]

   The maximum sentence for murder is life imprisonment and the standard non-parole period (in relation to a victim over the age of 18) is 20 years’ imprisonment. It was not suggested during the course of the sentencing proceedings that the circumstances of the offending warranted the maximum sentence.

4. [9]

   It was the Crown case that on 25 October 2018 at the home of SG in Ambarvale the deceased, Jamie Phillips, received a single stab wound that caused his death. The stab wound was inflicted by one of the three applicants.

5. [10]

   The following summary (a more complete summary of the evidence will be included and subject to comment later in these reasons) can be summarised from the remarks of the sentencing judge.

6. [11]

   During the course of 24 October 2018, the applicants were with each other. They picked up SG (who was a well-known drug dealer in the area) and drove her back to her home. Only Cavanagh was known to SG at the time, and she did not know either of the other applicants.

7. [12]

   The deceased arrived at the house of SG at some time during the afternoon of 24 October 2018. The deceased consumed methylamphetamine, to which he was addicted at the time. The methylamphetamine was consumed during the afternoon and evening. He was described by witnesses as being visibly affected by drugs.

8. [13]

   There was no evidence to suggest that the applicants knew the deceased prior to 24 October 2018. In the early hours of the morning of 25 October 2018, the applicants and the deceased had a fight in a bedroom of SG’s house (hereinafter “Bedroom 3”). SG banged on the door of Bedroom 3 and attempted to enter the room, but the door was locked. SG testified that either O’Keefe or McIvor called out, “It’s alright [SG]; it’s just us boys sorting out our shit”. SG told them to sort it out elsewhere and went into the backyard.

9. [14]

   SG was then invited back into the house by McIvor. She went into her bedroom and was then prevented from leaving. At one stage when she was escorted between her bedroom and the bathroom by O’Keefe, she looked through the door of Bedroom 3, which was slightly ajar, and saw the sole of the deceased’s shoe facing upwards on the floor.

10. [15]

    While she was locked in her bedroom, the deceased was either dead or dying on the floor in the other room. The deceased’s body was taken from the house and put in McIvor’s car. McIvor and O’Keefe then drove the deceased’s body around. O’Keefe removed the deceased’s clothes and, eventually, the body of the deceased was left at the side of a house in Rosemeadow. McIvor and his girlfriend later burnt the deceased’s clothes.

11. [16]

    The injuries to the deceased as summarised by the sentencing judge, were the stab wound; injuries to his arms and legs; and a series of blunt force injuries which resulted in: nasal bone fractures; abrasions; bruises; lacerations to the scalp and face; bruising of the neck muscle; and, fracture of the left superior horn of the thyroid cartilage in his neck.

12. [17]

    The Crown case relied upon joint criminal enterprise and/or extended joint criminal enterprise to establish the guilt of all three applicants. The Crown did not seek to establish which of the applicants actually stabbed the victim. The Crown proposed two alternate bases for the joint criminal enterprise:

    1. (1)

       That there was a joint criminal enterprise to inflict grievous bodily harm on the deceased by giving him “a sustained beating” (or “a really good flogging”); or,

    2. (2)

       There was a joint criminal enterprise to assault the deceased, where each contemplated that another participant in the enterprise might assault the deceased in some way in furtherance of the enterprise with an intention to inflict grievous bodily harm.

13. [18]

    As stated, and as is not uncommon in a joint trial, the evidence against each of the accused at trial was different. Notwithstanding the difference in evidence against each accused, the applicants did not dispute the following facts:

14. [19]

    Only O’Keefe gave evidence. He testified to the effect that he was the person who stabbed the deceased; he claimed that he stabbed the deceased before either McIvor or Cavanagh became involved; and he claimed that he was acting in self-defence.

15. [20]

    SG gave evidence to the effect that: she was in the bathroom at the time of the incident; overheard voices of the three applicants coming from the bedroom next to the bathroom; heard sounds of movement within Bedroom 3, which is adjacent to the bathroom; saw McIvor enter her bedroom with a knife in hand and a bit of bleeding on the knuckles; saw McIvor with the knife one other time; and, saw drops of blood on Cavanagh’s shoe.

16. [21]

    McIvor’s girlfriend, Ms Amanda Robinson, testified that: McIvor told her that, “him and his mates got into a fight and that someone died from that fight”; and that one of his friends was fighting with the deceased so they got involved (being three people in total). Further, McIvor told her that he had sought to perform CPR on the deceased, but it was too late and that “he’d been shivved [stabbed]”.

17. [22]

    Mr McIvor told Ms Robinson that he was scared about what would happen if he did not get rid of the deceased’s clothes and that he was “goneski”.

18. [23]

    Otherwise, the evidence revealed that McIvor and O’Keefe were involved in driving the body of the deceased away from the home of SG and that McIvor, together with his girlfriend Ms Robinson, later burned the deceased’s clothes. There was DNA on a fingernail clipping and from a swab taken from the deceased’s finger and on the deceased’s right foot that was consistent with the DNA of McIvor. The foregoing brief summary of evidence is sufficient to enable a detailed summary of the evidence to be understood and, in particular, where the pieces of evidence fit in the trial that proceeded.

Detailed Summary of Evidence at Trial

1. [24]

   As can be seen from the foregoing short summary and overview, the evidence of the witness, SG, was important. The trial judge provided a warning under s 165 of the Evidence Act 1995 (NSW) prior to SG giving evidence.

2. [25]

   The warning was a truncated version of that found in the Bench Book and related only to the circumstance that SG was criminally concerned with the offence. SG was charged and convicted of hindering the investigation into the murder of the deceased in that she had destroyed a memory card from the CCTV cameras which recorded those present in the premises at the time of the incident. A more complete direction was provided during the summing up.

3. [26]

   The evidence of SG was admitted against each of the applicants.

4. [27]

   SG confirmed that she received a 25% discount on her sentence for the plea of guilty and a discount for future assistance, being that she was to agree to give evidence against the co-accused.

5. [28]

   SG gave evidence that on 24 October 2018 the deceased arrived at her home in the afternoon, looking “very strung out”. He was delusional, talking to himself and paranoid. There were no injuries on the deceased when he arrived.

6. [29]

   Another person on the premises, Ms Lisa Morgan, also expressed concern about the deceased.

7. [30]

   The delusional behaviour continued throughout the time that the deceased was at the home of SG. Between 9:30 PM and 10 PM, SG decided to go to the club. The deceased informed her that he was going to another house nearby owned by a person by the name of Kath.

8. [31]

   Before she left for the club, SG gave the deceased $100 as he wanted to buy some cannabis. SG went to the club with Belinda, a friend. SG also testified that a person by the name of Errol attended her house during the course of the afternoon. So did a person by the name of Ben.

9. [32]

   SG asked her brother to watch over her home and repeated the invitation to the deceased to join her and her friend at the club. SG stayed at the club for over an hour. She telephoned the deceased from the club, but the call went to the deceased’s voicemail. From the club, SG walked to McDonald’s at Campbelltown from which she rang Cavanagh.

10. [33]

    SG had been provided Cavanagh’s phone number in relation to the supply of prohibited drugs in which SG was involved. Cavanagh answered the phone and offered to give SG a lift home.

11. [34]

    Cavanagh picked her up in a little blue car, which was being driven by McIvor with O’Keefe in the rear passenger seat. SG entered the car and sat next to O’Keefe. They drove to SG’s home. Mr Daniel Zammit, who had been previously contacted and/or sought to be contacted by SG, was in the front yard of the home when they arrived.

12. [35]

    SG told Mr Zammit that she had been uncomfortable in the car with three strangers. After asking Mr Zammit for a cigarette, which he did not have, McIvor drove SG to a 7-Eleven store to get cigarettes. She and McIvor spent about half an hour at the 7-Eleven store, during which time Cavanagh, O’Keefe and Mr Zammit were at her home.

13. [36]

    SG and McIvor took some food back to the home and when SG arrived Mr Zammit told her that the others were sitting in the shed. At that stage, SG wanted the group to leave so she asked Mr Zammit to close the shed, turn the power off and ask the others, being the three applicants, to leave. At that stage, the three applicants were described by SG as “loud and laughing and then whispering sometimes”. This made her feel uneasy and strange.

14. [37]

    At that point, SG went to the bathroom, which was located next to Bedroom 3 (as so described). While in the bathroom, SG could hear noises, which sounded like banging or like furniture or something being moved. SG heard a number of comments which she could make out and which she could recall. The comments made were saying things such as: “Wanna play games, just be fucking quiet”; “shut the fuck up, bro” and other like comments. SG called out: “what’s going on in there?” and she tried to open the door to Bedroom 3, but it was locked.

15. [38]

    One of either McIvor or O’Keefe, in her opinion, said to her in reply to her question: “It’s alright [SG], it’s just us boys sorting out our shit”, to which she replied: “well, go and sort it out somewhere else”. She then said: “Open the door, open the door!” and they said, “We’ll be out in a minute”.

16. [39]

    SG then went outside and lit a cigarette.

17. [40]

    At the time that SG had left for the club, she was unaware of where Mr Zammit was and thought that, when these events were happening, McIvor, Cavanagh and O’Keefe, together with Mr Zammit were in that room.

18. [41]

    She went outside, had a few puffs of the cigarette and then McIvor came to the backyard, down the back steps and yelled out: “[SG], where are you? What are you doing?”

19. [42]

    SG said, “I’m here, I’m not doing anything, I’m having a cigarette”. McIvor said: “Come inside, come back inside; everything’s all right; come back inside.”

20. [43]

    SG went back into the house and when she was returning, O’Keefe was in the laundry part of the house. SG walked past and went into her bedroom. SG sat on her bed for a couple of minutes before McIvor walked in. Her testimony then was in the following terms:

21. [44]

    McIvor took SG’s phone off her and asked her if the CCTV footage was being recorded, because the hard drive to the CCTV was in SG’s bedroom. SG replied in the negative and asked whether they were going to hurt her to which the response was to “just be quiet and you won’t be hurt”.

22. [45]

    SG asked to go to the bathroom and was permitted so to do, but was followed by O’Keefe. While SG was in the bathroom, she heard what she described as a sound like the bedroom door opening and closing and heard further words spoken. Those words were: “Just shut the fuck up. Shut up; fucking shhh, be quiet”. This, SG believed, came from Cavanagh and McIvor. SG then heard O’Keefe say “yeah, I’m here” and heard one of Cavanagh or McIvor say, “where the fuck are you, Sean [O’Keefe]?” To which O’Keefe replied: “I’m standing here doing what the brother asked me to do”.

23. [46]

    SG opened the door of the bathroom. When she exited the bathroom the door to Bedroom 3 was open slightly and, as she walked past, she saw the bottom of a shoe “like the top bit of an orange bit of a shoe facing, like the sole of it facing up. [SG] couldn’t see no body part, just a bit of a shoe.” SG did not inform any of McIvor, Cavanagh or O’Keefe what she had seen. She was “absolutely scared”.

24. [47]

    SG then heard the bookcase being moved and, she understood, being put against the door to her bedroom. SG then heard voices. SG heard O’Keefe crying and heard Cavanagh say “Get your shit together, bro. Get your shit together.”

25. [48]

    SG then heard someone get slapped and heard Cavanagh say, “should we take her out too?” O’Keefe replied, “no, she’s right, she’s right, she doesn’t know anything. Don’t hurt her, she doesn’t know anything”. SG then did not hear anything for some time. She thought she was in the bedroom for about 1½ hours before she heard the bookcase being moved again and someone, later in her evidence identified as Cavanagh, then opened her door.

26. [49]

    Cavanagh was at the end of the hallway and SG went towards that location. Cavanagh asked, “Are you all right, [SG]?” To which SG replied “yeah, I’m alright.” Cavanagh then said, “Sorry about us boys making that noise and stuff”.

27. [50]

    SG was trying to keep her composure and noticed that Cavanagh had a few drops of blood on his shoe. Cavanagh asked SG to run the shoes under water to wash the blood off and he stood at the bathroom door while that was happening. SG ran the shoes under water, without actually washing them, then handed them back to Cavanagh.

28. [51]

    On the evidence of SG, after the incident relating to the shoes, Cavanagh then went to the loungeroom and made a phone call and left. After that SG did not see Cavanagh again and, at the time that Cavanagh left, no one else was in the house.

29. [52]

    The examination-in-chief then clarified a number of matters relating to earlier evidence. SG clarified that when Cavanagh opened the door, she did not see either McIvor or O’Keefe. She also clarified that the shoe that she had seen pointing up was a shoe that she had seen on the deceased.

30. [53]

    SG was also asked to clarify the noises she heard from the bathroom that she had described as being like moving furniture. Her evidence was that she would hear a thump now and again and movement within the room. This went on for a few minutes, while she was on the toilet.

31. [54]

    SG also clarified that the voice she heard say “shut the fuck up” sounded like Cavanagh and it was McIvor who said: “you want to play games”; while it sounded like O’Keefe who said: “be quiet”. At no stage did she hear the voice of Mr Zammit, nor did she see him at any stage after she went into the bathroom. On questioning, SG also clarified that the blood that she had seen on McIvor’s hand looked like the kind of blood that occurs when you skin your knuckle.

32. [55]

    While SG testified that she did not again see Cavanagh, she did have contact with O’Keefe, who visited her twice after 25 October 2018. The first time, approximately one week later, O’Keefe told SG that he was not going to hurt her and he cried and said: “what happened shouldn’t have happened and shit got out of hand.” He also informed SG that he was not otherwise prepared to talk about the events.

33. [56]

    O’Keefe returned a couple of days after the first occasion, and he again indicated he was not prepared to talk about the events on 25 October. Again, O’Keefe started crying and then hugged SG. Thereafter, O’Keefe visited SG every second day or so and they formed a friendship.

34. [57]

    Otherwise, in her evidence-in-chief, SG described the knife that she saw, or its length, and identified a plan to her house. As would be expected, SG was cross-examined at length.

35. [58]

    She was cross-examined extensively by Counsel for O’Keefe with significant emphasis on credibility.

36. [59]

    Part of the cross-examination concentrated on the omission from SG’s statement to Police of crucial events that had occurred on 25 October 2018. A number of propositions were put to SG that accused her of lying in relation to various pieces of evidence. The details of those propositions are currently irrelevant, because the evidence is the answer and the answer was a denial of any mendacity or untruthfulness. As to the omission of events in the first Police statement, SG said that she had been traumatised at the time and she was not deliberately omitting events or observations.

37. [60]

    While without seeking to detract from the earlier comment — that it is the answer to questions that forms the evidence — the questions themselves may give rise to an hypothesis inconsistent with guilt. In assessing the facts, it is necessary to bear in mind any hypothesis and determine whether such an hypothesis is reasonable on the facts that are determined on the evidence that is accepted. It is for that reason that I summarise more fully than is absolutely necessary the cross-examination.

38. [61]

    Apart from the incomplete statement to Police during the first interview, a number of issues were put to the witness. One of those issues related to a discrepancy between the agreed fact that SG had signed for the purpose of her sentencing proceedings and her evidence in Court, which related to whether SG was aware that it was the deceased who had been killed in Bedroom 3. SG testified that, in relation to her Agreed Facts on sentencing, she had informed a barrister that she was not 100% sure of the identity. It was later explained by his Honour that the Agreed Facts implied a possible later acquired knowledge or acceptance of the identity of the deceased.

39. [62]

    During the course of cross-examination, Counsel referred to what was said to be inconsistencies in the versions that SG gave as to whom she called and from whom she had sought a lift home. For most of those propositions, SG had an explanation.

40. [63]

    SG maintained that the two versions were explicable because, in relation to the first call, Windy did not answer the phone but later did, but did not come to provide a lift for her. In the absence of obtaining a lift from Windy, SG maintained that she was prepared to and was going to walk home and that she had done so in the past.

41. [64]

    There were a number of incidental issues relating to phone calls. For example, questions were asked as to how and in what circumstances SG phoned Mr Zammit and/or a number for his girlfriend. Further, questions were asked relating to how it was SG had the number for Cavanagh. The phone number was placed in her phone by Mr Zammit because of the connection in relation to the purchase and sale of a pushbike. Each of these are, it seems, relevant only to credit.

42. [65]

    It was put to SG that her explanations in relation to obtaining the phone number of Cavanagh was a lie, which was denied by SG. It was also put to SG that she sold drugs from her home, with which proposition SG agreed.

43. [66]

    There was some questioning as to previous conduct of SG in relation to drugs transactions, which were accepted by SG. It should be noted that the trial judge had provided a s 128 Certificate in relation to the evidence of SG.

44. [67]

    SG accepted that she dealt drugs after talking with the Police, and accepted that, when she was talking to the Police, she had denied dealing drugs. SG also denied making a call to Cavanagh, about which reference has already been made, after visiting the club, which she explained on the basis that she was “scared of the bloke”.

45. [68]

    The deceased had, according to SG, arrived at her house at about 7 PM and she accepted that he looked like “shit” and that he had showed her needle marks on his arm. He looked withdrawn, skinny, pale, and fidgety.

46. [69]

    The deceased was also speaking strangely and said strange things directed at no one in particular, for example that a person had better start listening and leaving the woman alone. These conversations occurred before SG realised that the deceased had taken drugs, but she shortly became aware that he had.

47. [70]

    SG was aware that the deceased had injected ice, and she observed him on the edge of the bed with a syringe and a spoon on the ironing board next to it and SG could see that the spoon had liquid in it. SG was referred to an SMS in which she had described the deceased as “wigging HEAPS HARDER”. SG did not recall the SMS but defined “wigging out” as “acting weird” or “acting strange”. She denied that it meant someone was really high on drugs, but accepted that it had something to do with being affected by drugs of some kind.

48. [71]

    When SG arrived home in the car with the three applicants, she saw Mr Zammit outside and walked up to him to make sure that he was all right. She saw O’Keefe walking up the street.

49. [72]

    Then SG and McIvor left for the 7-Eleven, about which evidence was given in SG’s examination-in-chief. When she went to the 7-Eleven with McIvor, SG left Cavanagh and O’Keefe at her home.

50. [73]

    At the time, according to SG, the deceased was not at her place, and she did not introduce him to O’Keefe. Nor was she listening to music and relaxing with the three applicants and/or the deceased.

51. [74]

    Questions were put to SG on the basis that she had asked O’Keefe to keep an eye on the deceased, because she was concerned for the deceased as a consequence of him behaving strangely. SG denied that proposition.

52. [75]

    SG was taken, once more, to the first interview in which much of the material in the immediately preceding paragraph had been omitted. SG responded that she was “very distraught” and that she was “very confused, overwhelmed, emotional, withdrawn”.

53. [76]

    SG had earlier stated that at the time she was scared of Cavanagh. She reiterated that concern and also testified that she did not know what had happened in the room or whether it involved the deceased.

54. [77]

    SG was then reminded that, at or about the four-hour mark of the interview, she told one of the Police officers that she had “skipped a major part by accident”, which referred to the incident that she heard from the bathroom and thereafter. It was put to her on the basis that the incident that had been omitted was “the part where Jamie Phillips was killed” and “where you heard them talking about killing you”, and “where the bookshelf was pushed up against the door”. It was put to her that she also missed the part where she saw “a body or a person lying face down”.

55. [78]

    SG testified that she did not skip anything and, in response to a question seemingly aimed at skipping those events or putting them out of time, SG responded that she “was traumatised” and “wasn’t even thinking straight”. It was then suggested to her that those events did not occur and that she was “making up a story to paint herself as a victim”.

56. [79]

    SG reiterated the evidence relating to the threat to her; that she was locked in her room; that a bookcase was pushed against her bedroom door; that she was followed into the bathroom; that her phone had been taken; that O’Keefe spoke to her about keeping quiet. It was put to her and she denied that the story was made up in order that SG would not, herself, be in trouble and that, thereafter, SG maintained a false story. Those latter propositions were also denied.

57. [80]

    In the course of putting to SG that she was unaware of how the altercation commenced, Counsel put to SG that she was unaware of “what, if anything, was said before you heard this thumping”. SG responded that she was “in the bathroom” and that she “could hear it from the bedroom”.

58. [81]

    It was suggested to SG that, when she saw O’Keefe at the bathroom door he had a bloodied nose, which SG denied.

59. [82]

    In cross-examination, it was suggested that a statement SG made to Police that when she returned to her house, she noticed that things had been turned over and the place smelt of bleach, was untrue. She accepted that those comments were made to the Police and testified that they were true. She also testified that there was a wet patch on the carpet and that such testimony was not false.

60. [83]

    SG was then cross-examined about the activity of burning that she undertook, which she testified was a continuation of the clean-up that had been proceeding all week. SG was also cross-examined about the destruction of the memory card for which she was charged and sentenced.

61. [84]

    SG testified that the card was removed because of the drug issues that would be disclosed. SG also testified that the footage in the CCTV did not show inside the premises, but only around the premises and the CCTV showed, on the testimony of SG, only the front door.

62. [85]

    There was cross-examination in relation to the destruction of the memory card. SG stated that there were two memory cards, one of which she had destroyed, being the memory card that showed the front door and came from the lounge room where it was recorded, the other memory card coming from the bedroom.

63. [86]

    SG was asked about the discount to her sentence on the basis of her offer of assistance in the trial of the three applicants. SG was provided, over and above the reduction for the plea of guilty, a discount of 10% for undertaking to give evidence and a further 15% for future assistance, being the giving of the evidence.

64. [87]

    SG testified that she was not aware of the full amount and the breakup of the discounts. She also accepted that were she not to give evidence in accordance with the statements she had provided, there was a possibility that her sentence would be increased.

65. [88]

    SG was also cross-examined by counsel for McIvor. SG confirmed that she met McIvor for the first time on the night of these events. SG was again asked about the omission from her Police statement, when she described the events relating to the deceased or to the fight. This had previously been described as the most important aspect of the events. The question referred to the timing of mentioning the knife and her need to return to that timing when she was describing the events in question.

66. [89]

    It was suggested to SG that McIvor did not enter her bedroom with a knife and threaten her in any way, either directly or indirectly, with a knife. SG denied the suggestion and confirmed that McIvor had a knife in his hand.

67. [90]

    SG was shown a photograph of the knife which SG described as being similar to the knife that she had seen and may have been the same knife. Questions were then asked in relation to a drawing that was provided to Police of the knife, being a sketch by SG. SG also denied that she could have been mistaken in identifying the voices that she heard from the bathroom, in particular whether it was the voice of McIvor.

68. [91]

    Counsel for Cavanagh then cross-examined on the period during which SG had known Cavanagh and the testimony was that it had been for about a week before these events occurred. SG testified that Cavanagh’s voice was distinctive and he sounded like a New Zealander.

69. [92]

    There was examination as to the times that SG had been before the court on criminal charges, which SG testified was about three. There was also examination about a dispute between the deceased and his brother as to violence perpetrated by the brother on his girlfriend and an accusation that the deceased had a relationship with the girlfriend or was desirous of such a relationship. The dispute with the brother was an argument and SG did not notice any injuries on the deceased when he arrived at her house.

70. [93]

    SG denied being in love with O’Keefe, but accepted that she was in an intimate relationship with O’Keefe. SG was aware that the deceased had received “half a ball” of ice and was asked for the price of half a ball — which she said was $350. The deceased was using drugs with Ms Morgan who had attended the premises that day and had assisted in adjusting one of the cameras to the CCTV.

71. [94]

    Questions were asked in relation to the events in the bathroom.

72. [95]

    Many of the propositions put to SG were repetitive of, or reiterating propositions put in earlier cross-examination by Counsel for Cavanagh or by other Counsel. In re-examination, SG reiterated that she was scared at the time of the first interview and that she was frightened that she could be hurt or killed. SG reiterated that she did not know the co-accused McIvor or O’Keefe prior to the events in question. The cross-examination did not otherwise inform any reasonable hypotheses and was essentially concerned with credit.

73. [96]

    I next deal with the evidence of Witness A. Witness A was an informer who gave evidence of conversations Witness A had with Cavanagh and O’Keefe. Witness A’s evidence was adduced only against the applicants Cavanagh and O’Keefe and was not evidence against McIvor. While little turns on it, there was no ruling that limited the conversations between Witness A and Cavanagh to evidence against Cavanagh or conversations between Witness A and O’Keefe to evidence against O’Keefe. Nevertheless, I will treat the evidence in that way for the purposes of the determination of whether there is a reasonable doubt arising from the evidence. I hasten to add that there was no application by Counsel for that further restriction.

74. [97]

    Witness A knew Mr Zammit, who was a person mentioned in the conversations with Cavanagh. Apparently, Cavanagh informed Witness A that Mr Zammit had “given up” Cavanagh for murder.

75. [98]

    Witness A was close to Cavanagh and was involved in a number of conversations with him. They sometimes played cards together and he knew Cavanagh “fairly well”. Witness A had a conversation with Cavanagh about Cavanagh’s concern that he would be charged with murder. It was in this conversation that Mr Zammit was mentioned.

76. [99]

    Cavanagh informed Witness A that Mr Zammit “gave them up for the murder”. When details were sought of the terms of the conversation, Witness A detailed that “Daniel Zammit gave [Cavanagh] up for murder or something”, which was said to Witness A by Cavanagh. At the time, Witness A was unaware that Cavanagh had been charged with murder.

77. [100]

    Witness A was informed, during the conversations with Cavanagh, that “somebody was stabbed” and that “they bleached the body or something”. Witness A informed the Court that Cavanagh informed him that he (Cavanagh) was involved, but did so in code words. There were a number of conversations in which these matters were raised, which occurred over a couple of weeks.

78. [101]

    On questioning, Witness A gave more detail, including that the murder occurred in a house at Ambarvale or Rosemeadow; and that Cavanagh was there with a few friends, being the other two applicants and a female, the name of whom could not be recalled by Witness A.

79. [102]

    On being asked whether Cavanagh told Witness A what happened, Witness A said:

80. [103]

    Further, Cavanagh told Witness A that the fight was with the deceased. Cavanagh informed Witness A that the deceased “was stabbed under the like rib, armpit sort of area”, but did not say who stabbed the deceased. The evidence of Witness A, was that Cavanagh had told him:

81. [104]

    On further questioning, Witness A explained that the person with the knife in his hand, on the statement given to him by Cavanagh, was Cavanagh.

82. [105]

    Witness A also remembers Cavanagh telling him that “someone went for a drive or something, a body was cleaned up a bit or something, with bleach or something, and the removal of the clothing”.

83. [106]

    In the course of the conversation with Cavanagh, Cavanagh mentioned to Witness A the involvement of O’Keefe, who was known to Witness A. At a later time, Witness A met with O’Keefe and spoke with him about these events.

84. [107]

    The initial conversation with O’Keefe was concerned with the charges that had been laid against him in relation to the murder. O’Keefe had told him that he and Cavanagh and a couple of other people were charged with the murder of the deceased. This occurred in about 2020 and he expressed the view that he thought he would “beat” the charge, and if he were not to beat it that he, O’Keefe, “was going to be the one that put his hands up for doing it”. Witness A made clear that O’Keefe, by utilising the words “beat it” meant that he was going to be found not guilty of murder.

85. [108]

    The admission that O’Keefe was to make, if he were not to “beat it”, was based upon the proposition that O’Keefe perceived that he was “responsible” for the events because he invited the people there before the altercation. One of the conversations which Witness A recalled was a conversation in which Witness A said that Cavanagh had stabbed the deceased to which O’Keefe responded:

86. [109]

    Another version was given when asked of the detail and that version was not substantially different from the foregoing but was in the following terms, after Witness A referred to Cavanagh being the person that stabbed the deceased, the second version was:

87. [110]

    Witness A did not suggest that Cavanagh said words that expressly admitted to having stabbed the deceased. Rather, Witness A inferred the fact from other statements made by Cavanagh.

88. [111]

    In examination-in-chief, Witness A dealt with the discount in sentencing that occurred as a result of the assistance provided by the giving of evidence in these proceedings.

89. [112]

    Leave was granted to refresh the witness’ memory and Witness A was shown his statement of 29 August 2019. After refreshing his memory, Witness A testified that Cavanagh had told him that he would never forget the look of the deceased taking his last breath and that it was he, Cavanagh, who actually used the knife.

90. [113]

    Having refreshed his memory, he also recalled a conversation with Cavanagh as to how the altercation commenced. Cavanagh had told him that O’Keefe was in the lounge room and Cavanagh heard noises, like a fight so Cavanagh and McIvor ran to the lounge room to get involved in the fight. Witness A also recalled that Cavanagh had asked him to make contact with a person and for the two of them to look for a knife in relation to the murder. And, if it were found, get rid of it.

91. [114]

    Witness A was then taken to a second statement of 9 March 2020, which Witness A said reminded him of the conversation with O’Keefe about O’Keefe admitting to the killing. In the course of the further refreshed evidence, Witness A said that O’Keefe had told him he “was pressured” and that he was going to raise self-defence, and that if he put his hand up for manslaughter he, O’Keefe, would get “looked after”.

92. [115]

    At the beginning of the conversation with O’Keefe, O’Keefe told Witness A that he had, in fact, stabbed the deceased but, by the end of the conversation, O’Keefe had made clear that it was not O’Keefe who stabbed the deceased, which confirmed the information provided to Witness A by Cavanagh.

93. [116]

    Before dealing with the cross-examination of Witness A, it is necessary to reiterate that the evidence of Witness A was adduced against Cavanagh and O’Keefe and not against McIvor. The trial transcript does not disclose any other restriction on the evidence of Witness A. Ultimately, Witness A was the subject of a warning to the jury, but there was no ruling given and no ruling sought that the conversations with Cavanagh could not be used against O’Keefe or that the conversations with O’Keefe could not be used against Cavanagh.

94. [117]

    As one would expect, the cross-examination of Witness A dealt at length with an attempt at discrediting his evidence and reasons why Witness A ought not to be believed. First, the suggestion was made that when Witness A was told he would be looked after, it was intended that he inform on other inmates. Witness A denied that suggestion.

95. [118]

    Witness A was then asked about the offences for which Witness A was charged and sentenced, which included charges of dishonesty, being stealing, receiving stolen property, attempted break and enter, and a number of aggravated break and enter offences. Witness A accepted that he had stolen thousands of dollars’ worth of property for which he was facing sentence when he spoke to Police.

96. [119]

    The circumstances of how the statements were made were the subject of questioning, including the absence in the second statement of 9 March 2020 of any reference to O’Keefe suggesting that it was O’Keefe’s fault that the murder occurred. In cross-examination Witness A confirmed the evidence earlier given that O’Keefe had told him that the co-accused were taking drugs from the deceased and that O’Keefe was hoping to beat the charge by claiming it was self-defence, and that he would be “looked after” by his co-accused if he were found guilty of manslaughter or murder. Witness A denied having lied to Police about those matters for the purpose of reducing the sentence to be imposed on Witness A or otherwise.

97. [120]

    The evidence of Witness A was to the effect that he had been registered as a Police informer, but he testified that this was the first time he had provided information to Police. Witness A demonstrated the manner in which Cavanagh had demonstrated to him, Witness A, how the deceased was stabbed.

98. [121]

    It was described in Court as moving “his right hand from a lower position to a higher position across the front of his body”. Witness A said, in describing the motion, “he held one arm straight across in front of his body as if holding someone in front of them, then he took his other hand in a fist, as if holding something, and moved the hand from down beside his body in a forward and inwards out in front of him”. The full description by his Honour (with an accepted addition by the Crown) for the Court was, when Witness A demonstrated the action, “the witness moved his right hand from a lower position to a higher position across the front of his body … whilst holding his left hand out parallel to his shoulder”.

99. [122]

    Witness A testified that Cavanagh told or intimated to him that the deceased was fighting with O’Keefe before the deceased was stabbed. Witness A was not told, or does not think he was told, how many people were in the room, nor what the fight was about. Further, neither Cavanagh nor O’Keefe told Witness A whether the deceased had a weapon or knife himself. Further again, Witness A testified that Cavanagh had told him that he, Cavanagh, had joined in the fight to assist O’Keefe.

100. [123]

     In re-examination, Witness A reiterated the truth of the conversation given in a statement by Cavanagh namely:

101. [124]

     The evidence of Ms Robinson was admitted only against the applicant, McIvor. She was in a relationship with McIvor as at the date of the events at Ambarvale.

102. [125]

     On 25 October 2018, the day of the stabbing, McIvor visited Ms Robinson. Ms Robinson got out of her car and saw McIvor in his mother’s car and went over to talk to him. Ms Robinson testified that McIvor looked “worried”. McIvor told her:

103. [126]

     Ms Robinson described McIvor as scared. In answer to a question as to what, if anything, McIvor had said about what had happened, Ms Robinson said:

104. [127]

     Ms Robinson clarified that the name of the deceased was not mentioned in the conversation and the deceased was described as a Samoan guy, but Ms Robinson learnt, at a later time, that it was the deceased.

105. [128]

     Ms Robinson then described McIvor’s desire to abide by instructions given to him to get rid of the body and her role in that conduct. During the course of cross-examination, Ms Robinson assented, by a nod, to the proposition that it was a friend of McIvor’s who stabbed the deceased. Later, Ms Robinson found out who the co-offenders were and approached McIvor about those persons and mentioned to him O’Keefe and Cavanagh. On that approach, McIvor neither denied it nor did he agree with it.

106. [129]

     Ms Robinson and McIvor loaded black plastic bags, like football bags, into a drum, and then burnt the goods. The drum was a fire drum, an old 44-gallon drum, which they used to put the material in, add petrol to it and set it alight.

107. [130]

     Ms Robinson explained that she took part in this activity because she was scared for herself and was scared also for McIvor. Her concern was based upon the fact that McIvor was, seemingly, scared of the other two and what would happen if he did not “get rid of the stuff”. McIvor told her that, at the house, he was told that if he did not get rid of the stuff, it could cause his family to be in danger.

108. [131]

     Ms Robinson gave evidence as to wounds on the hands of McIvor. Those wounds were fresh but were not bleeding at the time that she saw them. They were on both hands and in the palms.

109. [132]

     Ms Robinson was charged and sentenced for accessory after the fact; received a 25% discount for pleading guilty at the earliest opportunity; and a further 25% for assistance, 10% for past assistance and 15% for her undertaking to give evidence in open Court in the present proceedings.

110. [133]

     Evidence was given by a Police officer of the statements made by Ms Robinson to Police which were in or to the same effect as the evidence during the trial. The evidence was given by Detective Morton by reference to his statement of 28 March 2019. In cross-examination Detective Morton confirmed that Ms Robinson used the plural “mates”, not the singular “mate” when referring to McIvor telling her of the fight with the deceased.

111. [134]

     As one would expect, there was significant other material, but none of the additional material is in the nature of observations of the night and events that occurred or comments by any one of the applicants, other than the evidence of O’Keefe, who gave evidence in the trial.

112. [135]

     I do not by the foregoing suggest that the other material is unimportant. But, as a consequence of the importance of the evidence of SG and the statements made by one or more of the applicants, the evidence in relation to those aspects has been recited more completely than might otherwise be the case.

113. [136]

     As may be obvious from the foregoing recitation of evidence from Ms Robinson, McIvor was involved in driving the body away from the home of SG; dumping the body; and, later, burning the deceased’s clothes. The reasons for his engagement in that conduct, if they were accepted, were provided to Ms Robinson and have been recited above. I have not repeated that McIvor also said to Ms Robinson that he was “goneski”, which it seems everyone took to mean that he would be charged and convicted.

114. [137]

     There was also DNA evidence in relation to each of the applicants, but the DNA evidence does not point unequivocally to a version that supports the Crown case. The DNA evidence is consistent with the Crown case and, in that sense, supports it, but it is also consistent with the absence of a joint criminal enterprise and the absence of an intention to cause grievous bodily harm.

115. [138]

     Essentially, such evidence supports the proposition that a fight occurred at the home of SG on 25 October, but that fact is uncontroversial and was accepted during the course of the proceedings. The mere presence of blood or other body products that would give rise to the presence of DNA does not, in and of itself, support the Crown theory of the case.

116. [139]

     The evidence of the injury sustained by the deceased (other than the knife wound) have already been provided in general terms in these reasons. It is appropriate to reiterate them at this point and to concentrate on the injuries other than the stab wound.

117. [140]

     The deceased had inflicted upon him nasal bone fractures, a fracture of the left superior horn of the thyroid cartilage; abrasions; bruises; lacerations to the scalp and face; bruising of the neck muscle; and injuries to his arms and legs. There is no evidence of defensive wounds suffered by any one of the applicants.

118. [141]

     The injuries suffered by the deceased (leaving aside, again, the stab wound) are consistent with blunt force injury. As stated in all expert reports on the nature of blunt force injuries, they can occur from the infliction of punches or kicks or the like, or from forceful contact of that part of the body with a stationary or immovable surface.

119. [142]

     Injuries to the face can be caused, for example, by falling face first down a stairwell, which would cause a series of blunt force injuries. Nevertheless, the injuries are consistent with that which is essentially uncontroversial, namely, that there was a fight between the deceased and one or more of the applicants.

120. [143]

     Evidence was also adduced, being tendency evidence, relating to the deceased. The tendency evidence was adduced for the purpose of proving that the deceased had a tendency to act irrationally and violently, including with a knife, when he was affected by drugs. There was independent evidence that the deceased was affected by drugs. However, the tendency evidence proves a tendency; it does not prove that the deceased acted irrationally or violently on the day that these events occurred.

121. [144]

     The evidence was that the deceased was observably affected by drugs, but apart from statements by the applicants themselves, there is no evidence that the deceased was acting violently at or about the time of these events.

122. [145]

     Other than the foregoing, there was evidence of the post-killing conduct to which reference has already been made, but to which further attention will be paid in these reasons as to the manner in which such evidence can be used and, in this case, should be used.

123. [146]

     While the evidence in relation to the other applicants is slightly different, it is in or to the same effect as that which has been outlined above. Ms Robinson’s evidence also concerned Cavanagh and O’Keefe. O’Keefe gave evidence himself in the trial.

124. [147]

     It is probably appropriate, even though the jury rejected it, to deal with O’Keefe’s evidence more fully. O’Keefe’s evidence was that he was friends with each of Cavanagh and McIvor.

125. [148]

     He confirmed that the three of them picked up SG and drove her home, but denied making arrangements to meet her and testified that he had not met her before. When they arrived at the home of SG, the deceased, according to O’Keefe, was at the front of the house and he met him there. Mr Zammit was not, according to O’Keefe, at the house that night.

126. [149]

     O’Keefe gave evidence of the use of drugs by the deceased and that the deceased, after taking the drugs, started speaking to people who were not present and commenced acting in an intimidating fashion to absent people.

127. [150]

     At one stage, for example, the deceased, according to O’Keefe, suggested he was related to the Queen of England. When SG left the house with McIvor, according to O’Keefe, SG asked O’Keefe and Cavanagh to watch the deceased.

128. [151]

     The deceased, according to O’Keefe, was waving a knife around but not threatening O’Keefe or anyone. Rather, it was part of the aspect of intimidating people who were not present.

129. [152]

     O’Keefe told the deceased to come out of SG’s bedroom and the deceased told O’Keefe that he, the deceased, was talking to SG. O’Keefe told the deceased that SG was not present and O’Keefe felt that the deceased was “getting the shits with [him]” as he had to keep telling him not to go into the bedroom. The deceased picked up the knife and O’Keefe told him to put it down and shortly thereafter SG and McIvor returned.

130. [153]

     When SG went into her bedroom, some little time later, the deceased went into the bedroom in which the altercation occurred (Bedroom 3) and was rummaging through a bag. O’Keefe asked him what he was doing and the deceased answered that it was his “fucking bag” and “I’m sick of you telling me what to do”. The volume, according to O’Keefe, was loud.

131. [154]

     O’Keefe then testified that the deceased came at him with “the blade”, being a knife similar to a hunting knife, about 20 to 30 cm in length. O’Keefe said he started fighting with the deceased and grabbed the deceased’s hand. O’Keefe hit the deceased and smashed him against the cupboard, telling him to drop the knife.

132. [155]

     According to O’Keefe, at some stage, he slipped and was lying on the ground, on his back with the deceased on top of him, at which time O’Keefe stabbed the deceased. Initially, he thought he had stabbed him in the stomach, but he was later informed it was higher and he testified that he did not intend to stab the deceased in the heart. He testified that the other two applicants were not in the room when all of this happened.

133. [156]

     However, within seconds, McIvor entered the room and pulled the deceased off him. The deceased dropped the knife and he and McIvor were fighting while O’Keefe, in shock, remained on the ground. Cavanagh came in and the deceased fell to the ground. There was then an attempt to give mouth-to-mouth resuscitation and/or CPR.

134. [157]

     O’Keefe denied following SG into the bathroom or threatening SG. He also denied taking her telephone. According to O’Keefe, SG assisted in carrying the deceased to the car. O’Keefe testified that Cavanagh wanted to take the deceased to the hospital, as did McIvor, each of whom were still trying to revive him.

135. [158]

     O’Keefe was taken to a number of recordings and was asked about the evidence of Witness A, which has been extracted above. Essentially, O’Keefe sought to explain all of the comments and made it clear that he was aware that the house in question was the subject of surveillance devices.

136. [159]

     In cross-examination on behalf of Cavanagh, O’Keefe made it clear that Cavanagh was not involved in the fight and that Cavanagh was at the premises only in order to obtain drugs. Further, in relation to McIvor, the witness clarified during cross-examination by Counsel for McIvor that McIvor was not initially involved in the fight but became involved after O’Keefe had stabbed the deceased and pulled him off O’Keefe. When he did that, the deceased got to his feet and the deceased and McIvor were fighting. As earlier stated, the deceased dropped the knife, which, also as earlier stated, was a different knife to that which O’Keefe said was used to stab the deceased.

137. [160]

     The cross-examination of O’Keefe by the Crown commenced with the statement of 14 November 2018 which O’Keefe accepted was false. O’Keefe testified that if he had not lied to Police he would not have been able to walk out of the Police Station. O’Keefe was taken to five versions of what had happened leading up to the death of the deceased and causing it. In the first and second version he said he did not do anything; in the third version someone else was accused of stabbing the deceased and O’Keefe was not involved; in the fourth version Mr Zammit stabbed the deceased; and in the fifth version, O’Keefe was not on the premises. He was then taken to a sixth version in which O’Keefe said it was an accident and no-one’s fault; and the last version was that which he gave in evidence in these proceedings, being that it was self-defence.

138. [161]

     Notwithstanding the rigorous cross-examination of SG and Ms Robinson, each of them read believably, even taking into account the warnings that were given by the trial judge and need to be taken into account in assessing their evidence. Obviously, the jury believed them. Just as obviously, the jury did not believe O’Keefe.

139. [162]

     Nevertheless, the mere fact that the jury did not believe O’Keefe, with which assessment I agree on the reading of the transcript, does not establish the negative of that to which O’Keefe testified. It is the function of the Crown to negate self-defence. In essence, the only evidence of self-defence is that to which O’Keefe testified or about which he spoke in previous conversations, in circumstances where, in relation to the previous conversations, it is fairly clear that they were false.

140. [163]

     As can be seen from the concentration on the evidence above, the most important evidence, in my view, is that of SG and Ms Robinson. Most homicide trials, for obvious reasons, depend upon circumstantial evidence and the drawing of inferences. In that respect circumstantial evidence takes a number of forms. Scientific and DNA evidence is an aspect of circumstantial evidence, as is medical evidence (if not otherwise included in the earlier comments). Usually, medical evidence will only take the Crown case so far.

141. [164]

     In this case, two of the aspects that require particular comment are the tendency evidence adduced in relation to the deceased and the post-offence conduct of the applicants.

142. [165]

     The tendency evidence adduced in relation to the deceased renders more probable conduct of a particular kind, but does not establish that it occurred. On the other hand, such evidence may establish a reasonable hypothesis consistent with self-defence. However, there is direct evidence from which inferences can be drawn to the required standard contrary to that aspect.

143. [166]

     The evidence of SG, which is accepted and was accepted by the jury, deals with that which could be heard from the bathroom from the room next door, being Bedroom 3. SG, as indicated above, testifies to the voices that were heard and identifies each of the applicants as participating in the conversation. SG did not hear Mr Zammit (a proposition put to her). Nor did she hear the deceased.

144. [167]

     I accept that the deceased was talking and that he was affected by drugs. But, on the testimony of SG, he was not shouting or aggressive.

145. [168]

     If he were to have been aggressive or shouting, SG would have heard him from the bathroom or, if it were earlier, from her bedroom. She did not.

146. [169]

     As a consequence, there is direct evidence that during the altercation (about the existence of which there is no contest), the deceased was neither shouting nor screaming; nor, it seems, acting aggressively. Thus, the direct evidence is inconsistent with the existence of conduct of the kind that the tendency evidence establishes.

147. [170]

     Much of the post-offence conduct is unhelpful, in the sense that it may be consistent with an explanation other than murder or manslaughter.

148. [171]

     In the course of submissions, Counsel for one or more of the applicants relied upon the judgment of Otto v Tasmania. [1] I generally agree with the comments of the Court of Criminal Appeal in Tasmania at [46] of the foregoing judgment, but I consider, for present purposes, the question framed by the Tasmanian Court of Criminal appeal is too narrow. The Court said:

149. [172]

     With great respect, when dealing with a ground of appeal that alleges an unreasonable verdict, the Court cannot answer the question by determining whether “it was open for the jury to have excluded all reasonable hypotheses”, but must determine, for itself, whether a reasonable hypothesis remains open that is inconsistent with guilt for these charges (including manslaughter). I do not suggest that the statement in Otto is necessarily incorrect, because it may in the foregoing relate to the advantage enjoyed by the jury.

150. [173]

     I turn then to the principles associated with the drawing of inferences. I adhere to the view I expressed in Fantakis v R. [2] The drawing of an inference is a matter of common sense and an inference can be drawn if human experience would be contradicted if it were not.

151. [174]

     In a criminal trial, not every fact must be proved beyond reasonable doubt. Each of the elements must be so proved, but where a court is considering circumstantial material, those circumstances, each of which may not be proved beyond reasonable doubt, may be combined for the purpose of establishing an element or essential fact to the requisite standard.

152. [175]

     Nevertheless, for an inference to be reasonable, it must arise from something more than conjecture. The mere possibility of innocence does not prevent a jury, or on appeal a court looking at an unreasonable verdict, from finding a person charged to be guilty of an offence if the inference of guilt is the only inference open on a reasonable view of the evidence as a whole. [3]

153. [176]

     In relation to the circumstantial evidence in these proceedings, the post-offence conduct is part of that circumstantial case. The most telling aspect of that conduct is the proposition, identified as being put by Cavanagh, as to how the three applicants would deal with SG. Further, in Bedroom 3, while it is clear that the deceased was talking and his comments elicited the commands from Cavanagh and/or McIvor asking him to keep quiet, the statements from the deceased were not heard by SG.

154. [177]

     Afterwards, SG heard Cavanagh say, “Should we take her out too?”, which was plainly a reference to SG and plainly a reference to the proposition as to whether she should be killed. There are two aspects to that which require comment.

155. [178]

     First, the use of the term “too” is an admission by Cavanagh, in the presence of McIvor and O’Keefe, that “taking out” SG would be an additional “taking out”. Secondly, the proposition that the three of them should commit what would plainly be a murder for the purpose of avoiding detection for what had occurred earlier is post-offence conduct which significantly and pointedly displays a consciousness of guilt as to the conduct in relation to the deceased.

156. [179]

     For my own part, it would seem to be a consciousness of guilt relating to murder and not manslaughter, but it is necessary to be careful that the “common sense” approach to the seriousness of what is suggested as post-offence conduct is not informed by an understanding of the relative seriousness of manslaughter and murder that would be known to a judge but not necessarily the persons involved in the conduct.

157. [180]

     Nevertheless, it would defy common sense for the three applicants to be discussing the killing of SG in circumstances where there had been no homicide committed or, if a homicide did occur, it was in the context of self-defence.

158. [181]

     In dealing with consciousness of guilt, it is appropriate to bear in mind the comments of the Victorian Court of Appeal in R v Ciantar; DPP v Ciantar [4] where the Court also said:

159. [182]

     In the course of its reasoning, the Victorian Court of Appeal referred to the judgment in England of R v Miah [5] in which, in relation to homicide and dealing with the effect of lies as post-offence conduct, the English Court said:

160. [183]

     Thus, while any person who understands the relative seriousness of manslaughter and murder would take the proposition that a second murder would occur to avoid a charge of manslaughter as defying common sense, the assumption is that such a differentiation or discrimination would occur in the mind of the applicants. In other words, each of manslaughter and murder carry serious consequences. The precise differentiation of those consequences may not be uppermost in the mind of the applicants at the time they were contemplating killing SG in order to hide the conduct that occurred in relation to the deceased. As a consequence, there is at least a reasonable hypothesis that the comments attributed to Cavanagh and to which O’Keefe responded do not evidence a consciousness of guilt of murder, as distinct from manslaughter, but, nevertheless, disclose a consciousness of guilt of an unlawful killing, being a killing other than in self-defence.

161. [184]

     Oral evidence was also called at trial from other witnesses, which it is unnecessary for me to examine in detail.

162. [185]

     Some of the persons called included Police officers involved in the investigation of the deceased’s murder, the member of the public who discovered the deceased’s body, pharmacologist Professor Christie, and forensic pathologists Dr Little and Dr Nieuwenhuijzen. Evidence was also given by SG’s brother, Mr Zammit and Ms White who were other guests at the house of SG on the day of the events in question, the deceased’s brother Mr Allen Phillips, sister Ms Kellie Phillips, mother Ms Cheryl Phillips, nephew Mr Christopher Phillips, and friend Ms Amanda Gribben, and SG’s friend Melissa Lebby. The Court also heard from Witness C who was an acquaintance of O’Keefe.

163. [186]

     It is sufficient to say that I have read and have had regard to the evidence put forward by the other witnesses when preparing these reasons.

Joint Criminal Enterprise

1. [187]

   The principles that establish liability in a joint criminal enterprise are well rehearsed. In order for a joint criminal enterprise to exist there must be conduct of two or more persons jointly. In such circumstances each participant in the joint criminal enterprise is liable for the conduct of each other participant to the extent that the conduct does not extend beyond the terms of the agreement or understanding reached between them. [6] It is the conduct of each participant for which the other participants are responsible and such conduct may, in relation to different participants, constitute different offences, or, in rare cases, no offence.

2. [188]

   It is trite that it is for the Crown to prove, beyond reasonable doubt, each of the two factors associated with the operation of a joint criminal enterprise: the existence of the agreement or understanding; and the participation of a particular accused in that criminal enterprise.

3. [189]

   In the current circumstances, there were four people in Bedroom 3, being the bedroom next to the bathroom. Those four persons were the deceased and the three applicants. It is not sufficient to prove mere presence at the commission of a crime in order to prove participation in the criminal enterprise. Mere presence is insufficient.

4. [190]

   However, the agreement or understanding that constitutes a joint criminal enterprise does not need to be express. The existence of the understanding or arrangements may be inferred from the circumstances that persist. Further it is unnecessary for the agreement or understanding to have been reached before the conduct that forms part of the crime commences.

5. [191]

   In my view, the combination of the evidence of SG, together with the other evidence of statements and other conduct of the applicants and the DNA evidence, utilised appropriately against each applicant, establishes beyond reasonable doubt that all three of the applicants participated in inflicting a beating on the deceased. The circumstance that a fight occurred in Bedroom 3 was not seriously in contention during the course of the trial.

6. [192]

   The comments heard by SG during that which was plainly the altercation, together with the comments made thereafter by the applicants in the presence of the other applicants, are sufficient to establish that all three of the applicants participated in the assault. Of course, those statements do not relate to self-defence and do not relate to the infliction of the stab wound. It was the stab wound that caused death.

7. [193]

   The Crown case rests upon extended joint criminal enterprise. In those circumstances, there must be a joint criminal enterprise of the kind described above, in which one of the participants in the joint criminal enterprise engages in conduct that was not necessarily the subject of agreement or understanding, but which conduct is a contemplated possibility in engaging in the conduct that has been the subject of the understanding or agreement.

8. [194]

   In this case, whether or not there was an express agreement prior to the infliction of the assault, given the evidence of the absence of shouting or aggressive conduct by the deceased; the absence of a realistic possibility of self-defence; and the participation of all three in the assault, there was a joint criminal enterprise to assault the deceased. The Crown referred to it as a “flogging” or “beating”. Such a description may be appropriate, but it has a connotation relating to the seriousness of the assault.

9. [195]

   When three people join in an assault on an individual, it is impossible not to contemplate that the assault will be serious. It would defy common sense not to infer that an assault by three persons would not involve the possibility of the infliction of grievous bodily harm, or even death.

10. [196]

    But, in order for the Crown to prove a joint criminal enterprise by these applicants which amounts to murder, the Crown must prove not only the infliction of grievous bodily harm jointly, pursuant to an understanding that is inferred from the conduct, it must prove an intention to inflict grievous bodily harm or to kill. Since it cannot be proved which of the three applicants inflicted the stab wound, the Crown seeks to prove murder by use of an extended criminal enterprise, namely, that the three participants assaulted the deceased pursuant to an understanding or agreement inferred from their conduct and that each of them contemplated that one of them could inflict the assault with an intention to cause grievous bodily harm (really serious physical injury). [7]

11. [197]

    It is unnecessary in the current circumstances for each applicant to foresee the possibility of a stab wound. It is sufficient for the Crown to establish, beyond reasonable doubt, that each of the participants contemplated that one of them would engage in the joint criminal enterprise with an intention to inflict grievous bodily harm.

12. [198]

    As already stated, an intention may be inferred from conduct. When all of the applicants joined in the assault, there was necessarily a joint criminal enterprise. Thus, it is permissible to infer an intention from the conduct of an accused, but it is the subjective intent that is relevant and must be proved. Reasonable foresight of probable or possible consequences is evidence of intent, but it is not conclusive.

13. [199]

    Similarly, the natural and probable consequences of an act, while evidence of intent, is not conclusive. The consequences would need to be inevitable for the act to amount to conclusive evidence of an intent and, even then, there may be subjective reasons why that intent was not present.

14. [200]

    In the current circumstances, the participation of the three applicants in the altercation in the home of SG was, on the analysis above, an assault on the deceased which caused grievous bodily harm and must have contemplated the causing of grievous bodily harm. However, I do not accept that there is not a reasonable hypothesis consistent with the proposition that, even though the infliction of grievous bodily harm would have been contemplated as a real possibility, it was neither agreed nor intended.

15. [201]

    In other words, because of the doubt I have expressed, I do not consider that the Crown has proved, beyond reasonable doubt, that the joint criminal enterprise or extended joint criminal enterprise constituted murder.

16. [202]

    However, on the foregoing analysis, it was a joint criminal enterprise to assault the accused, which, in the circumstances, was an unlawful and dangerous act, in which the participants contemplated that grievous bodily harm could be inflicted and, from which joint criminal enterprise, death ensued. In other words, on the foregoing analysis the infliction of grievous bodily harm, while contemplated as a result, was not an intended result. In those circumstances, the Crown has proved, beyond reasonable doubt that the applicants are each guilty of manslaughter, but not murder.

Consideration

1. [203]

   The foregoing reasons have undergone a number of iterations. In part, the vacillation was occasioned by whether in participating in a joint criminal enterprise to inflict injury on the deceased, it was inevitable that an assault by three persons would result in grievous bodily harm and, therefore a necessary inference arose that an intention to cause grievous bodily harm was contemplated. However, in part because of the level of vacillation, I have determined that the Crown has not proved the subjective mind of any one of the applicants nor that the occasioning of grievous bodily harm was a contemplated intended result.

2. [204]

   Since the first iteration of these reasons was drafted, I have had the advantage of reading the reasons for judgment of R A Hulme AJ. I agree with those reasons, and with the dismissal of the grounds of appeal otherwise agitated by the applicants, other than the ground relating to an unreasonable verdict.

3. [205]

   I have also had the advantage of reading the reasons for judgment of Fagan J. For the foregoing reasons I necessarily disagree with the conclusions reached by his Honour. There is however one matter upon which it is necessary to comment.

4. [206]

   His Honour proposes that, in relation to the applicant Cavanagh, the appeal should be upheld on the ground of unreasonable verdict, the conviction quashed and there be an order for retrial on the charge of murder. In my view, such an order is not open.

5. [207]

   The Crown has agitated a charge for murder against Cavanagh. At the end of that trial, on the analysis of Fagan J, there is reasonable doubt and the verdict of guilty is unreasonable. To send the matter back for retrial on the charge of murder is, in those circumstances, a breach of the principle of double jeopardy.

6. [208]

   The doctrines of plea in bar and the broader concept of double jeopardy derive from policy of the criminal law. This was acknowledged and stated by the High Court in The Queen v Carroll [8] where the Court said:

7. [209]

   Once the Crown has completed a trial on the charge of murder and a verdict has been reached, which verdict is overturned because the verdict is unreasonable, it is, in my view, not open to permit the Crown to reagitate the charge of murder on the same facts but on a different basis for liability. If the verdict of the jury on the charge of murder is unreasonable then, with respect to Fagan J, the verdict must be quashed, and it is not open to allow the Crown to prosecute again for the same crime that it has failed to prove in a trial already completed.

8. [210]

   I turn then to the appropriate orders to issue, if my conclusions were accepted. The jury convicted the applicants of murder. The jury was satisfied that, on the case presented, the Crown had at least proved to the requisite standard: the death of the deceased; the existence of a joint criminal enterprise to assault the deceased; and each of the participants contemplated that one of them would cause grievous bodily harm.

9. [211]

   At common law, murder and manslaughter were the one offence and a verdict of manslaughter is always available on a charge of murder. The Court cannot substitute the verdict of manslaughter for murder unless satisfied that the jury must have been satisfied of and decided all necessary elements of manslaughter. [10]

10. [212]

    In order to prove manslaughter, the Crown must relevantly prove to the requisite standard death caused by an accused in an unlawful and dangerous act or, participation in a joint criminal enterprise to engage in such an act, which act then causes death. Were it not for the complication associated with the common purpose, manslaughter would be available as a substituted verdict where the only reasonable doubt that has arisen relates to the intention to kill or cause grievous bodily harm. [11]

11. [213]

    In my view, the principle in Spies, to which reference has been made would allow the substitution of manslaughter, but there is a contrary view where, as here, the jury has not needed to turn its mind to whether the assault in which the applicants jointly participated was “dangerous”. Ultimately, I consider that the miscarriage that has occurred is more adequately remedied by an order for a new trial than by the substitution of a verdict, whether or not the verdict of manslaughter could be substituted.

12. [214]

    Lastly, there is a need to deal with the application by Cavanagh for an extension of time in which to file the appeal. The principle of finality has no place to play in dealing with such an issue. Further, the discretion to extend time is to be exercised by consideration of what the interests of justice require in the particular case. Further again, it is an error to introduce a consideration of whether refusal of the application would occasion substantial injustice. [12] The manifest justice in this case is that the extension should be granted. In those circumstances, I would propose that the Court make the following orders:

    1. (1)

       Time to file the application for leave to appeal be extended to 30 September 2022;

    2. (2)

       Leave to appeal be granted;

    3. (3)

       Appeal be allowed;

    4. (4)

       The conviction for murder be quashed;

    5. (5)

       Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Barry Paul Cavanagh, be remitted to the District Court for re-trial on the charge of manslaughter;

    6. (6)

       The matter be listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge.

    7. (1)

       Leave to appeal be granted;

    8. (2)

       Appeal be allowed;

    9. (3)

       The conviction for murder be quashed;

    10. (4)

        Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Nathan McIvor, be remitted to the District Court for re-trial on the charge of manslaughter;

    11. (5)

        The matter be listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge.

    12. (1)

        Leave to appeal be granted;

    13. (2)

        Appeal be allowed;

    14. (3)

        The conviction for murder be quashed;

    15. (4)

        Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Sean David O’Keefe, be remitted to the District Court for re-trial on the charge of manslaughter;

    16. (5)

        The matter be listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge.

C. In the application by Sean David O’Keefe (2019/111830):

1. [215]

   FAGAN J: I have read in draft R A Hulme AJ’s judgment concerning grounds 2-5 in McIvor’s appeal and grounds 2-3 in O’Keefe’s. I agree with the proposed disposition of those grounds and with his Honour’s reasons.

2. [216]

   I have also read the reasons of both Rothman J and R A Hulme AJ concerning ground 1 in each appeal, the ground that the jury’s verdict of guilty of murder is “unreasonable, or cannot be supported, having regard to the evidence”. I would uphold that ground in relation to all three applicants. I am unable to agree that orders should be made for a new trial of each applicant on a charge of manslaughter. In my view, there should be verdicts of acquittal for O’Keefe and McIvor and an order for a new trial of Cavanagh on the charge of murder, such trial not to be conducted upon the basis of a joint enterprise with O’Keefe and/or McIvor.

3. [217]

   The Crown sought to prove that the three applicants participated in a joint criminal enterprise to inflict grievous bodily harm upon the deceased, or alternatively a joint enterprise to assault him to some level of severity with foresight of the possibility that grievous bodily harm would be inflicted intentionally. The latter formulation invokes the doctrine of “extended common purpose”, as the High Court labelled it in Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58 at [11], or “extended joint criminal enterprise” according to the terminology of the judgments in Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5. Collectively, the two alternative formulations of the Crown case may be referred to as “joint enterprise liability”: Clayton v The Queen at [4]-[5]; Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6 at [4]-[5].

4. [218]

   There was evidence on which the jury, acting reasonably, could have been satisfied to the criminal standard that Cavanagh was guilty of murder on the simple basis that he stabbed the deceased with intent to cause grievous bodily harm and that the wound so inflicted was the cause of death. However, the jury were not directed that in order to find him guilty they would have to be satisfied that he was the person who inflicted the knife wound. The case against Cavanagh was left in accordance with the only way the Crown had formulated it, namely, joint enterprise liability which only required the jury to be satisfied that one or other of the applicants stabbed the deceased, without it being necessary to decide which one. The jury’s verdicts show that they found a joint criminal enterprise proved to the requisite standard. That conclusion was unreasonable and unsupported by the evidence. Although the guilty verdict against Cavanagh could have been sustained on the simple basis referred to above, it cannot stand in light of the conduct of the Crown case and the directions pursuant to which the verdict was returned. As the case was left, it is not implicit that the jury were satisfied beyond reasonable doubt that Cavanagh inflicted the fatal knife wound.

5. [219]

   Part way through the summing up, at pp 32-35, the Crown belatedly and unsuccessfully sought to have the jury directed to the following effect:

6. [220]

   The learned trial judge rightly responded to the prosecutor as follows:

7. [221]

   There was no direct evidence that at the time of the stabbing the applicants had agreed to inflict grievous bodily harm upon the deceased, or to assault him to any degree. The Crown case was that the stabbing occurred in the course of all three applicants subjecting the deceased to a “sustained beating”, in circumstances from which there could be inferred either a mutual understanding that grievous bodily harm was to be occasioned or foresight on the part of each applicant that it was possible one or more of them would intentionally inflict such harm.

Forensic pathology – evidence of a sustained beating by someone

1. [222]

   At autopsy Dr Little identified numerous blunt force injuries to the deceased, including abrasions and bruises to his head, lacerations to his scalp and face and fractures of his nasal bone. He also had bruising of the neck muscles and a fracture of the thyroid cartilage. Dr Little said the appearance of the injuries was consistent with them having been inflicted within about half an hour before death. She said that they could have been caused by punches or kicks or, in some cases, by impacts against furniture or a floor. There was evidence that the injuries had not been apparent to witnesses who had seen the deceased during the afternoon of 24 October 2018 or during that evening at SG’s house at Ambarvale, before the deceased was killed there in the early hours of 25 October 2018.

2. [223]

   There was thus evidence from which the jury could be satisfied that the deceased received a beating from someone shortly before he died. Dr Little did not give any opinion as to whether the deceased’s injuries were likely to have been inflicted by more than one assailant.

SG – applicants and deceased together at the scene of the stabbing

1. [224]

   The Crown had no eyewitness to the attack upon the deceased. Apart from forensic evidence, the high point of the Crown’s proof of who was present and the circumstances of the attack was the testimony of SG. She had destroyed a memory card from a Closed Circuit Television (“CCTV”) camera at her home, which may have recorded who was there on the night in question. SG had pleaded guilty to having thereby hindered the investigation of the homicide. She was serving a term of imprisonment for that offence when she was called in the Crown case. Her sentence had been reduced upon her undertaking to give evidence against the applicants. She was cross-examined at length concerning her truthfulness and the reliability of her observations and memory. SG was a drug user at the time of the homicide. Her evidence was the subject of a warning pursuant to s 165 of the Evidence Act 1995 (NSW), on the basis that she might reasonably be supposed to have been criminally concerned in the events giving rise to the prosecution. Notwithstanding the cross-examination and the warning, it was open to the jury to have accepted the parts of her testimony that are now summarised.

2. [225]

   SG said she was picked up by McIvor, driving his mother’s small blue Ford sedan, outside the McDonald’s restaurant at Campbelltown shortly after 2:00 am on 25 October 2018. Cavanagh and O’Keefe were also in the vehicle. She was driven to her home. Cavanagh and O’Keefe remained there but shortly after arriving McIvor drove SG to a convenience store to purchase cigarettes, food and drinks. They were away for about half an hour. SG said that Daniel Zammit was also present at the house, both when she first arrived from Campbelltown in the company of the applicants and later when she and McIvor returned from the convenience store. In his own evidence Zammit denied that he was there at either time. It was open to the jury to regard his presence or otherwise as immaterial.

3. [226]

   SG said that upon her return from the convenience store Cavanagh and O’Keefe were in a shed at the rear of the property. Soon afterwards, all three applicants were behaving in a loud and rowdy manner in the shed. SG claimed that she asked Zammit to tell them to leave the property. She then went to a bathroom located about halfway across the width of the rear of the house, adjacent to Bedroom 3. Her evidence continued as follows:

4. [227]

   Later in her evidence SG said that this went on for “the time for me to go to the toilet, like minutes”. She said the sounds she heard, apart from human voices, were:

5. [228]

   SG said that the words, “Shut the fuck up, bro” sounded like they were spoken by Cavanagh. The words, “Wanna play games” sounded like McIvor and “Be quiet” sounded like O’Keefe. She said that she did not hear Zammit’s voice while she was in the bathroom and she did not see him after she came out.

6. [229]

   SG’s narrative continued from the part quoted at [226] above, as follows:

7. [230]

   SG later clarified that it was only McIvor who had the knife in his hand and the bleeding knuckle. She said there was not a lot of blood and the knife he held was about 20 cm long. The Crown did not contend that that knife had been the murder weapon.

8. [231]

   SG’s narrative continued in the following terms:

9. [232]

   In a later passage SG said that she thought she had seen the deceased wearing “that shoe” at some earlier time. She continued her description of events that occurred after she passed the bedroom door and saw the shoe, as follows:

10. [233]

    SG said that when Cavanagh opened her bedroom door to let her out, neither McIvor nor O’Keefe was still present at the property. After Cavanagh left the house she did not see him again that night. At about 1:00 pm on 25 October 2018 the deceased’s body was found, naked, outside the rear fence of a residential property in Vaucluse Place, Glen Alpine, about 2.5 km from SG’s house. The jury clearly rejected O’Keefe’s evidence that he stabbed the deceased in self-defence. If they had considered that a reasonable possibility, they could not have returned a verdict in respect of him any greater than guilty of manslaughter. Nevertheless, it was open to the jury to accept O’Keefe’s evidence that he and McIvor had removed the body from SG’s house to Glen Alpine, shortly after he died, in the blue Ford that McIvor was using that night.

11. [234]

    It was open to the jury to infer from a combination of SG’s testimony and the forensic evidence that the assault and stabbing of the deceased occurred in Bedroom 3. The deceased’s blood was identified in that room on a set of woven cane drawers, on a bare patch of floor, on carpet underlay, and on a wall behind a bed. Forensic evidence tending to establish that each of the applicant’s had been in Bedroom 3 was also adduced: see below at [261] concerning O’Keefe, at [278] concerning McIvor and at [286] concerning Cavanagh.

12. [235]

    From SG’s evidence the jury could infer that all three accused were in Bedroom 3 for the period of “like minutes” when SG was initially in the bathroom and heard noises and voices through the common wall. Her evidence did not establish a precise interval of time from those “minutes” up to the time when she saw what appeared to be the deceased’s orange shoe on the floor of Bedroom 3. It was a significant interval: long enough for SG to have tried to open the bedroom door with a demand to know what was going on; gone out to the backyard of the property and had “a few puffs” of a cigarette; returned to her bedroom at the opposite end of the house from Bedroom 3; sat there for “a couple of minutes” before McIvor, carrying a knife, entered with O’Keefe; had a conversation with McIvor about the CCTV; then again used the bathroom and heard Cavanagh and McIvor in Bedroom 3 saying words to the effect of “Shut up” and O’Keefe speaking from outside the bathroom door.

13. [236]

    In the Crown’s chain of circumstantial reasoning to an ultimate conclusion that all three applicants were parties to a joint criminal enterprise, an essential link was that they were all present when the serious assault and stabbing took place. It was open to the jury to infer that whoever had attacked the deceased had ceased doing so by the time his shoe was observed. It was no more than an assumption on the part of the Crown that the entire attack including the stabbing had taken place during the initial period of “like minutes” when SG heard what seemed to have been the three applicants together in Bedroom 3. The evidence could not reasonably support an inference beyond reasonable doubt that the deceased must have been both seriously assaulted and stabbed during that initial period rather that at some later time during the interval when SG was away from Bedroom 3, before the deceased’s shoe was seen. If the stabbing occurred during an assault that took place, or was continuing, in the subsequent time interval then the evidence provided no basis for inferring which of the applicants was or were present.

14. [237]

    If, contrary to my view, the jury could have excluded any reasonable possibility but that the three applicants were present throughout an assault in Bedroom 3 including the fatal knife thrust, what proof was there that they all took part in the beating, or that any of them who was present but did not strike a blow nevertheless stood ready to do so? SG did not see what any of the applicants did in the bedroom, nor could her evidence support an inference beyond reasonable doubt that all of them contributed to the attack – and no witness saw or heard any more than she did, except O’Keefe, whose evidence was exculpatory and was disbelieved. The evidence left open that the inferred beating may have been perpetrated by only one or two of the applicants. SG’s evidence could not support an inference as to which one or ones that may have been, or who may have refrained. It was not open to the jury to infer that any applicant who may not have taken part must have remained present with a willingness to assist, or must have signified agreement by word or gesture, either to the infliction of grievous bodily harm or to a bare assault. Without direct evidence of what took place in the room, the jury could not exclude the reasonable possibility that two of the applicants beat the deceased and that the third stood back, wanting no part of what took place but afraid, or at least unwilling, to intervene; or that the third simply could not get out the door when physical conflict began. On SG’s evidence there was no basis for excluding the possibility that there may have been one such abstainer, or even two and therefore no basis for concluding beyond reasonable doubt that all participated. As the Crown case did not purport to identify the stabber and the jury were directed that they need not determine who that was, the act of stabbing could only be attributed to any of the accused, for the purposes of criminal liability, if there was a joint enterprise of all three.

15. [238]

    If, again contrary to my view, it could have been inferred from SG’s evidence that all three applicants must have agreed to the assault and taken part in it, her evidence alone was incapable of proving which of them agreed that grievous bodily harm should be inflicted and/or which of them foresaw that intentional infliction of grievous bodily harm was a possibility. The jury could infer that the assailant or assailants who fractured the deceased’s nasal bone, fractured his thyroid cartilage and stabbed him in the chest intended or foresaw grievous bodily harm. SG’s evidence could not establish who that assailant or assailants was or were or that the other or others intended, foresaw or acquiesced in such blows.

16. [239]

    SG’s evidence of the words she heard spoken in Bedroom 3 added nothing to proof of agreement, foresight or participation. Without evidence of who was doing what in the bedroom when various things were said, there was no basis upon which the jury could infer to whom any of the words were addressed, or what they meant, or what they revealed with respect to the intent of the speaker.

17. [240]

    In many cases of collective violent attacks that result in grievous bodily harm and death, the presence of an accused at the scene, particularly if he or she played a part in the attack, will be sufficient circumstantial evidence to prove the element of agreement that is essential to joint enterprise liability. The same evidence would commonly also support an inference that the object of the agreement was an outcome of the nature that occurred, such as grievous bodily harm to the victim. In a case of extended common purpose, the fact that an accused remained present during a concerted attack will often support an inference that he or she at least contemplated the intentional infliction of grievous bodily harm. The same evidence would usually also establish the further requirement of participation in the execution of the enterprise, at least to the extent of readiness and willingness to assist. The cases cited above illustrate these points: see Clayton v The Queen at [8]-[10] and [25]-[26]; Huynh v The Queen at [10]-[11], [28], [35] and [38]-[39].

18. [241]

    In the present case SG’s very limited and fleeting observations in the vicinity of the attack were not sufficient to support inferences of this nature to the criminal standard. I will consider below the evidence, additional to that of SG, that was tendered in the cases against the applicants respectively. Rothman J has noted that the applicants did not contest at trial that “a fight” took place in Bedroom 3 on the night in question. An acknowledgement at that level of generality is a far cry from a concession of a combined assault from which a joint criminal enterprise could be inferred.

19. [242]

    The acceptance at trial of “a fight” encompassed diverse assertions as to what occurred. One version was O’Keefe’s description of a struggle in self-defence, which obviously could not bolster the Crown case on joint enterprise. Ms Robinson gave evidence of admissions by McIvor that all three applicants became involved in “a fight”. Witness A recounted admissions by Cavanagh that he, with McIvor, went to the aid of O’Keefe who was fighting the deceased. As discussed further below, neither McIvor nor Cavanagh described the events to which they admitted in out of court statements in sufficient detail to show that each applicant played such a part, and in such circumstances, as to support an inference that they acted in concert pursuant to an understanding formed either at the scene or prior.

20. [243]

    It will be seen that I do not consider that the additional, separately admissible evidence strengthened the case on joint criminal enterprise against any of the applicants. It did not redress the shortcomings of SG’s testimony.

21. [244]

    A jury cannot in every case reasonably find a joint criminal enterprise from the circumstance that two or more people were in proximity to the commission of a stabbing, where the crime must have been committed by one of them but the one cannot be distinguished. Joint criminal enterprise is not a loose concept. It is not something to be freely and casually imputed. Where there is no direct, explicit evidence of an agreement made or of an understanding reached, an allegation of joint enterprise liability requires a circumstantial evidential foundation from which a jury may infer beyond reasonable doubt that those present acted in concert towards a criminal objective. In accordance with the principles that govern circumstantial proof of any essential element of a crime, the jury must be satisfied that there is no reasonable possibility, in all the circumstances, that the crime was committed by one perpetrator acting independently of concert with others present.

22. [245]

    I do not share Rothman J’s reservation about the statement of the law in Otto v Tasmania [2021] TasCCA 15 at [46] (Porter AJ, Brett and Geason JJ agreeing). Porter AJ’s statement accords with the authorities cited by his Honour at [46]. It also accords with the many High Court decisions on the correct approach to an unreasonable verdict ground (starting with M v The Queen (1994) 181 CLR 487; [1994] HCA 63) and concerning the basis upon which an hypothesis consistent with innocence may arise for a jury’s consideration (Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42) – which Porter AJ considered thoroughly at [15]-[20]. In the present case there was insufficient evidence to support first stage reasoning by the jury towards an inference of a joint criminal enterprise between the three applicants to cause grievous bodily harm to the deceased or to assault him in any degree. There was a dearth of probative circumstances.

23. [246]

    The deficiency in the Crown case here was not merely with respect to whether the evidence could reasonably support an inference of agreement or foresight about the gravity of the outcome – intentional infliction of grievous bodily harm as would be necessary for murder or the commission of an unlawful and dangerous act as would be sufficient for manslaughter. The weakness of the Crown case lay at the fundamental level of being insufficient to prove an agreement to carry out an assault in concert, at all, with agreement or foresight as to any degree of harm. The evidence would not sustain a joint criminal enterprise to commit manslaughter.

O’Keefe’s account of the stabbing – self-defence

1. [247]

   O’Keefe gave evidence that at SG’s house he saw the deceased inject himself with “maybe seven points” of methylamphetamine, which was seven times the dose that O’Keefe himself used recreationally. After that the deceased appeared to be hallucinating. He repeatedly confronted people at the house, including O’Keefe, in a physically threatening manner. O’Keefe said that after McIvor and SG had returned from the convenience store, the deceased entered Bedroom 3 and began searching through a bag. O’Keefe said to him:

2. [248]

   O’Keefe said that the deceased then came at him with a hunting knife that was 20-30 cm long. O’Keefe commenced fighting with the deceased, took hold of him, hit him, smashed him against a cupboard and told him to drop the knife. He said that he punched the deceased numerous times because the deceased would not let the knife go. His evidence continued as follows:

3. [249]

   O’Keefe said he is right-handed and that he was on his back with the deceased on top of him when he stabbed the deceased. He could not remember where he got the knife from, possibly from a bench in the bedroom. It was not his own. He believed that he stabbed the deceased in the stomach. He did not mean to stab him in the heart or to kill him. O’Keefe’s evidence was that Cavanagh and McIvor were in the backyard when this struggle took place. He said McIvor came into the bedroom “a couple of seconds” after the deceased had been stabbed, while the deceased was still holding his own knife and was grappling with O’Keefe. McIvor pulled the deceased off O’Keefe. The deceased then rose to his feet, dropped his hunting knife and engaged in a fight with McIvor for at least 30 seconds before dropping to the floor. Cavanagh came in at about that time but was not involved in fighting the deceased. O’Keefe said that “they”, apparently referring to Cavanagh and McIvor, attempted mouth-to-mouth resuscitation of the deceased. O’Keefe expressly denied that Cavanagh had stabbed the deceased, in contradiction of the alleged admission by Cavanagh to Witness A, referred to below.

4. [250]

   Although O’Keefe said that he engaged in physical conflict with the deceased and that McIvor did also, to a lesser extent, that evidence provided no support for the inference of a joint criminal enterprise to cause grievous bodily harm to the deceased or to assault him. The physical conflict that O’Keefe acknowledged was antithetical to the kind of concerted attack that the Crown postulated as having taken place in Bedroom 3, from which it was argued that a joint enterprise could be inferred.

5. [251]

   O’Keefe disputed SG’s evidence that he and the other applicants had all been together with the deceased in Bedroom 3, that any of them had said the things that SG claimed to have heard from within the bedroom, that she had banged on the door and tried the lock and demanded to know what was going on. He denied that he had later escorted SG to the bathroom and stood outside. He denied that he went into her bedroom with McIvor while the latter was holding a knife and had blood on his knuckle. O’Keefe claimed that SG assisted in carrying the body of the deceased to McIvor’s car and that she did not say or do anything to indicate that she was in fear. It is not necessary to consider in detail the differences between O’Keefe’s evidence and SG’s. Those differences were relevant to the truthfulness and accuracy of each of them. It was reasonably open to the jury to accept SG and to reject O’Keefe’s contradictions of her.

6. [252]

   O’Keefe said that Cavanagh and McIvor initially wanted to take the deceased to a hospital but O’Keefe was afraid the police would not believe he had acted in self-defence. He said that he and McIvor drove the deceased’s body to the location in Glen Alpine where it was left and that he removed the deceased’s clothing lest his own DNA be detected upon it. O’Keefe said that Cavanagh was not involved in transporting the body or stripping it. He said that the knife with which he stabbed the deceased was “a little Wiltshire type” knife with about a 12 cm blade and that he had buried it.

Additional evidence in the case against O’Keefe

1. [253]

   Police covertly installed a surveillance device in SG’s house during the execution of a crime scene warrant on 2 November 2018. In a conversation recorded three days later O’Keefe told SG that he was sure the police would be listening to what was said in the house. Between 5 and 15 November 2018 he was recorded speaking to SG on several occasions, to the following effect:

2. [254]

   O’Keefe said in cross-examination that in all of the above conversations he was being untruthful and merely trying to throw the police off in their investigation. He made a statement to police on 14 November 2018 in which he said he could not recall ever having met the deceased or ever having been present at SG’s house “when there was any altercations between any other guests”. He was cross-examined by the Crown upon this and said, “The whole thing’s a lie”.

3. [255]

   Evidence was adduced of O’Keefe’s phone conversations from the gaol with his partner, Ms Warfield, between February and July 2019. Some of these were to the effect that he “wasn’t even there”. In evidence in chief and in cross-examination by the Crown he said that those statements by him were lies.

4. [256]

   It was open to the jury to find that O’Keefe’s statements to SG recorded by means of the surveillance device were a pretence by which he intended to mislead the police, whom he believed were listening, and that those statements discredited O’Keefe’s evidence at trial that he had acted in self-defence. However, there was nothing in the recorded conversations to support a finding against him that the three applicants, or any two of them, had joined in a concerted, sustained assault upon the deceased or that any of them had agreed upon, or foreseen the possibility of, the infliction of grievous bodily harm as the outcome of any such criminal enterprise. In the surveillance device recordings there was no admission by O’Keefe that he had stabbed the accused in circumstances not involving self-defence. The recordings did not contain any assertions by O’Keefe about anything that either of the other applicants had done that could have supported the Crown case of joint enterprise to cause the deceased grievous bodily harm.

5. [257]

   The prosecutor submitted to the jury in final address that they should reject O’Keefe’s evidence and focus on the Crown case. It was open to the jury not to accept O’Keefe’s account of having acted in self-defence, either because his prior inconsistent statements discredited him or simply because he was not a sufficiently believable witness to raise any reasonable possibility that self-defence may have been involved. However, that rejection of course did not provide a foundation for inferring positively that he stabbed the deceased in circumstances different from those that he described, or that a particular one of the other applicants did so, or that any particular two of the applicants, or all of them, agreed to or participated in a joint enterprise of assaulting the deceased, with agreement, or contemplation, that grievous bodily harm or any lesser harm be inflicted.

6. [258]

   Witness A said that when he and O’Keefe were both in prison in early 2020 O’Keefe told him that he, Cavanagh and two others had been charged with the deceased’s murder. O’Keefe said he thought he could “beat” the charge but “if he wasn’t to beat it, that he was going to be the one that put his hands up for doing it”. Witness A told O’Keefe that he understood Cavanagh had stabbed the deceased, to which O’Keefe responded:

7. [259]

   According to Witness A, O’Keefe told him that he was pressured to “put his hand up” for the killing, that he was attempting to raise self-defence and that if he “put his hand up” for manslaughter he would “get looked after … by the other boys”. Witness A was challenged as to his credit, including on the basis that he had a significant record of convictions for offences of dishonesty, that he was awaiting sentence at the time he made his statement to police and that he had received a discount on his own sentence for having assisted the authorities.

8. [260]

   It was open to the jury to accept Witness A’s evidence concerning O’Keefe. However, its only effect was to discredit his account of having acted in self-defence. Witness A provided no positive support for the Crown’s case that O’Keefe was a party to a joint criminal enterprise to assault the deceased, to any degree of severity, causing any level of harm, either agreed or foreseen as possible.

9. [261]

   Forensic samples collected on 2 November 2018 showed that O’Keefe’s DNA was located on a knife found at SG’s house, that his fingerprints were on a bottle in Bedroom 3 and that his palm print was on the front door of the house. None of this advanced the Crown case against O’Keefe on joint enterprise liability for either murder or manslaughter. It was not in issue that O’Keefe had been at the house, including in Bedroom 3, during the early hours of 25 October 2018.

10. [262]

    As R A Hulme AJ points out in his consideration of O’Keefe’s ground 2 at [384], the Crown did not submit to the jury that O’Keefe’s actions of removing, stripping and dumping the deceased’s body exhibited a consciousness of guilt capable of supporting an inference that he was guilty of either murder or manslaughter on the basis of joint enterprise liability. O’Keefe’s post-homicide conduct was relied upon only to rebut his claim that self-defence was involved, not as affirmative proof of his participation in the alleged joint criminal enterprise. On that limited basis, the disposal of the body and clothing is of no significance to the question whether the jury’s guilty verdict against O’Keefe was reasonably open on the evidence.

11. [263]

    Cavanagh’s question, “Should we take her out too?” (see the second answer from SG quoted at [232] above) was only capable of supporting the case against Cavanagh. It was open to the jury to interpret Cavanagh’s question as an acknowledgement of his own involvement in the unlawful homicide and the involvement of at least one of the others. That follows from his use of the plural “we”. According to SG, O’Keefe was present when this was said and he replied, “No, she’s right, she’s right, she doesn’t know anything. Don’t hurt her, she doesn’t know anything”. That response could not reasonably have been relied upon by the jury as an admission by O’Keefe that he had unlawfully killed the deceased or acted in concert with one or more of the other applicants who had done so. O’Keefe’s answer was inherently ambiguous. It was consistent with him merely having been aware that either Cavanagh or McIvor or both of them had “taken out” the deceased. In the absence of other evidence of participation by O’Keefe in a joint enterprise as alleged by the Crown, his response to Cavanagh could not support the verdict returned against him.

12. [264]

    Neither O’Keefe’s evidence, nor the prior inconsistent statements that tended to discredit him, nor any other evidence admissible against him provided circumstantial proof of the fundamental requirements for joint enterprise liability: agreement and participation. None of the evidence was capable of overcoming the limitations of what could be inferred from SG’s scant observations at the scene of the crime: see [235]-[241] above. The totality of the evidence could not rationally support an inference beyond reasonable doubt that O’Keefe took part in the assault or that he was present ready to assist either or both of the others in carrying out the assault.

13. [265]

    In the absence of evidence from which the jury could find that each of the three applicants either took part in assaulting the deceased or was present in Bedroom 3 ready and willing to assist, there was no basis for attributing to O’Keefe any level of criminal responsibility for the homicide. Even a verdict of manslaughter would depend upon the jury being satisfied that he agreed with one or both of the others to carry out an unlawful assault accompanied by agreement, or foresight of the possibility, that the assault would involve what a reasonable person would regard as an appreciable risk of causing serious injury.

14. [266]

    The jury’s verdict against O’Keefe shows that they did not accept that he stabbed the deceased in the circumstances he described. There was no evidence capable of satisfying the jury to the criminal standard that he wielded the knife in any different circumstances. Without evidence reasonably sufficient to prove a criminal concert of all three applicants, there was no basis upon which the jury could properly have attributed to O’Keefe criminal responsibility for the stabbing done by one of the others. The verdict of guilty against him was therefore “unreasonable [and] cannot be supported, having regard to the evidence”.

15. [267]

    Leave to appeal should be granted in respect of O’Keefe’s ground 1 and the ground should be upheld. The appeal should be allowed. The verdict of guilty should be set aside. The evidence would not support an alternative verdict of guilty of manslaughter and I see no justification for ordering a new trial on that lesser charge.

Additional evidence in the case against McIvor

1. [268]

   McIvor did not give evidence but his counsel submitted to the jury that they should accept that he took part in a physical conflict with the deceased only in defence of O’Keefe and of himself. There were three aspects of McIvor’s post-homicide conduct and statements that the Crown relied upon as rebutting the contention of self-defence.

2. [269]

   First, there was O’Keefe’s evidence that the two of them together had removed the deceased’s body from SG’s house and disposed of it at Glen Alpine. McIvor did not challenge that evidence.

3. [270]

   Secondly, McIvor’s then partner, Ms Robinson, gave evidence that on 25 October 2018, during the day following the death of the deceased in the early hours, McIvor told her that someone had died after having been “shivved” in a fight with McIvor and two of his mates. He arranged that she should drive to her sister’s home in her own car and collect a 44 gallon drum. McIvor drove there in his mother’s blue Ford. They bought a container of petrol from a service station and drove onto a fire trail at Appin, where McIvor removed from the boot of his mother’s car some black plastic bags “of stuff”. The drum was placed on the ground, the “bags of stuff” were put into it, petrol was poured over the bags and they were set alight. McIvor said that he was afraid of his mates, that they had told him “you’re either in or you’re out” and that if he didn’t dispose of the plastic bags his family could be in danger. It was reasonably open to the jury to infer that the bags contained the deceased’s clothes.

4. [271]

   Thirdly, there was McIvor’s admission to Ms Robinson that he was “goneski”. At [300] – [301] R A Hulme AJ has quoted that conversation and recounted the context in which it took place.

5. [272]

   R A Hulme AJ’s consideration of McIvor’s grounds 2-5 shows that all of this post-homicide conduct was left to the jury only as rebuttal of McIvor’s contention that he acted to defend himself and/or O’Keefe. It was open to the jury to be satisfied beyond reasonable doubt that self-defence was not involved in the killing of the deceased. The Crown did not suggest to the jury that any of McIvor’s post-homicide conduct displayed consciousness on his part of having committed either murder or manslaughter. Hence, the post-homicide acts and admissions may all be disregarded for the purpose of determining ground 1.

6. [273]

   Assessment of whether it was reasonably open to the jury to find the charge of murder proved against McIvor is to be undertaken by reference to other evidence that the Crown did rely upon as part of its case against him. That did not include Cavanagh’s question, “Should we take her out too?”. SG did not say that she heard any response to that from McIvor. She said that she was locked in her bedroom at the time and did not see who was present when Cavanagh raised the proposition. There was no evidence that McIvor heard Cavanagh’s question, let alone that he responded in a way that implicitly incriminated him.

7. [274]

   As referred to above, Ms Robinson gave evidence that on 25 October 2018 McIvor told her that he and two of his mates “got into a fight and that someone died [in] that fight”. McIvor said one of the others commenced fighting with the deceased, the deceased overpowered him and McIvor joined in fighting the deceased who then dropped to the ground. According to Ms Robinson, McIvor told her that at that point one of his mates said “it was too late, he’s been shivved”. McIvor did not initially tell Ms Robinson who the two mates were but she subsequently received some information and asked him whether they were O’Keefe and “Bazza”, a name used for Cavanagh. Ms Robinson said that McIvor neither agreed nor denied that those were the two other persons who had been involved.

8. [275]

   Prior to the trial Ms Robinson was sentenced to an intensive correction order as an accessory after the fact to the murder of the deceased. Her conviction was based upon her part in helping McIvor to burn the plastic bags of material. She received a 25% discount on sentence for her assistance to authorities and for her willingness to give evidence in the trial. Accepting that it was open to the jury to rely upon her evidence, the admissions made to her by McIvor did not advance the Crown case against him. McIvor’s statement that there was a “fight” between one of his co-accused and the deceased was not accompanied by any detail as to who started the fight, or in what circumstances, or whether McIvor and the third accused were present when the fight began and/or whether either of them signified agreement for the deceased to be assaulted. On Ms Robinson’s account, McIvor gave no description of the severity of blows delivered by the co-accused and/or by the deceased. Without any of this detail the admission of an initial one-on-one fight, subsequently joined in by McIvor and possibly also by the third of the applicants, was not probative of a joint enterprise to cause grievous bodily harm.

9. [276]

   McIvor’s admission that he joined the fight when the deceased appeared to have the upper hand contributed nothing to proof of agreement, between himself and whichever of the co-accused was the original combatant, that the fight should be pursued with any particular degree of severity. The term “fight” is not self-explanatory as to any degree of harm that the fighters might be inferred to have intended or foreseen. McIvor’s admission to Ms Robinson did not disclose whether the third applicant, whoever that may have been in the terms of McIvor’s admission, also joined in or otherwise signified agreement with the fight. The admission provided no support for a jury inference that McIvor must have intended, agreed upon or foreseen the production or use of a knife, or the infliction of grievous bodily harm by that or any other means, or the commission of an unlawful and dangerous act.

10. [277]

    The Crown relied upon a recorded conversation between McIvor and Ms Robinson on 26 February 2019 in which he described his engagement in a fight, with respect to which Ms Robinson asked, “Why were you trying to impress that junkie?”. The jury could not reasonably have relied upon that conversation as containing admissions with respect to a fight with the deceased at the scene of the homicide. In that conversation there were several indicia that it related to an entirely different occasion and a different opposing combatant.

11. [278]

    DNA matched to McIvor was located on a fingernail clipping of the deceased and on swabs from the inside of the deceased’s foot and from one of his fingers. McIvor’s palm print was present on a mirrored cabinet in Bedroom 3. His blood was located in several places within that room: on the woven cane drawers, on a timber chest of drawers, on an area of bare floor, on the mirrored cabinet and on a cube storage system. That forensic evidence and SG’s evidence of his skinned knuckle tended to confirm McIvor’s engagement, to some extent, in physical conflict with the deceased. Some of the DNA results were consistent with him having assisted to move the body. However, the totality of that evidence provided no additional circumstantial basis for an inference that McIvor had adhered to or participated in a joint criminal enterprise to attack the deceased.

12. [279]

    What I have said at [235]-[241] above concerning the insufficiency of SG’s evidence to prove the participation of all three applicants in the assault upon the deceased applies to the case against McIvor. Taken together with other evidence specifically relevant to him, the whole of the evidence could not reasonably support a finding beyond reasonable doubt that he was guilty of either murder or manslaughter. McIvor’s criminal liability depended critically on there having been a joint enterprise of the three. The jury ought to have been left with at least a reasonable doubt as to whether such an enterprise had been agreed upon or executed. Leave to appeal on ground 1 should be granted, that ground should be upheld and the appeal allowed. McIvor’s conviction on the charge of murder should be quashed and a verdict of acquittal entered.

Cavanagh

1. [280]

   I have earlier noted that the Crown conducted its case against Cavanagh solely on joint enterprise liability and that SG’s evidence could not sustain a verdict that he was guilty on that basis. No other evidence admitted against Cavanagh enhanced the case sufficiently to support a finding beyond reasonable doubt that he participated in a joint enterprise. The significant additional evidence against him consisted of his admissions to Witness A, in which the jury could have found proof beyond reasonable doubt that he stabbed the deceased unilaterally but which they were not directed to consider in that light. The admissions to Witness A, summarised below, were of inadequate detail to provide a foundation from which the jury could infer to the criminal standard that Cavanagh attacked the deceased in criminal concert with the other two.

2. [281]

   Despite the extensive cross-examination of Witness A on credit, as referred to at [259] above, it was open to the jury acting reasonably to accept him as truthful and accurate. There was nothing inherently improbable about his evidence and it was not contradicted by or inconsistent with any other evidence that should be regarded as uncontroverted. The jury were appropriately warned to exercise caution, in accordance with s 165 of the Evidence Act.

3. [282]

   Witness A said he had lived close to Cavanagh from time to time since about 2014 or 2015 and had come to know him “fairly well”, conversing and playing cards with him on occasions. Early in 2019 Cavanagh told Witness A that “he might be charged with murder of someone”, that “Daniel Zammit gave Barry [Cavanagh] up for a murder or something”, that “somebody was stabbed … they bleached the body or something” and that Cavanagh “was involved”. According to Witness A, Cavanagh said that this occurred at a lady’s house “at Ambarvale or Rosemeadow” where he was present with O’Keefe and McIvor. Witness A’s material answers were as follows:

4. [283]

   After being permitted to refresh his recollection from his police statement Witness A’s further answers in chief included the following:

5. [284]

   In cross-examination Witness A said that Cavanagh had stood up while recounting these events and demonstrated the manner in which the stabbing had taken place, moving his right hand from a lower position to a higher position across the front of his body whilst holding his left hand out parallel to his shoulder. Making due allowance for the approximation necessarily inherent in such a comparison, the jury could reasonably have concluded that the stabbing said to have been demonstrated by Cavanagh to Witness A would be consistent with the single stab wound found by Dr Little at autopsy. Witness A also gave these answers in cross-examination:

6. [285]

   It was open to the jury to understand from this that Cavanagh had admitted to having stabbed the deceased in the chest in the course of a physical altercation between O’Keefe and the deceased. Neither the circumstances that led to O’Keefe’s violence, nor the extent of it when the others were present, were defined. No participation of McIvor was described by Cavanagh to Witness A. He said McIvor ran into the lounge room “to get involved in the fight” but he did not say whether McIvor then actively took part, or if so to what extent, or whether he did anything that could have been taken as his agreement with what ensued. In the absence of anything stronger or additional, I do not see how a jury could infer against Cavanagh, from this evidence, that the only reasonable hypothesis was that at the time of the stabbing an agreement or understanding was formed between the three applicants to act in concert to inflict harm on the deceased.

7. [286]

   The evidence of Witness A and other evidence that I will now consider, while not capable of proving a joint enterprise, could sustain at a new trial a charge of murder by Cavanagh as a sole actor. His DNA was found on a fingernail clipping from the deceased, tending to proof that there had been physical contact. One of his palm prints was found on furniture in Bedroom 3, supporting SG’s evidence that he was in that room. It was open to the jury to accept SG’s evidence that she heard Cavanagh say, “Should we take her out too?”. The jury could justifiably regard that as an admission by Cavanagh, at the scene, that he had shortly beforehand been concerned in “taking out” the deceased. This would add credibility to Witness A’s account of what Cavanagh later admitted.

8. [287]

   Cavanagh’s written submissions on the appeal include a catalogue of internal variations and inconsistencies in SG’s evidence. The submissions identify many changes in the details of her account, from her early police interviews through to her evidence before the jury, and a large number of points upon which her evidence conflicted with that of other witnesses. It was submitted that evidence of her drug use and erratic behaviour should have caused to the jury to have a reasonable doubt about her testimony.

9. [288]

   Those attacks on SG’s credit and reliability were drawn very fully to the jury’s attention in the course of cross-examination by all three defence counsel, transcribed over 140 pages. However, the only significance of SG’s evidence in the case against Cavanagh was – and would be in a new trial – to establish that he was in her home in the early hours of 25 October 2018, that the deceased was also there, that Cavanagh had asked O’Keefe, “Should we take her out too?” and that Cavanagh had asked SG to wash blood off his shoes at a time that must have been after the deceased’s body had been removed – the last-mentioned point having been contested in cross-examination. Other evidence, including the forensic sampling of the deceased’s blood from Bedroom 3 (see [234] above), established that that was the place of the fatal stabbing. With their advantage of having seen and heard SG give evidence over three days, it was reasonably open to the jury to accept the truthfulness and accuracy of the core, relevant part of her account, as summarised at [226]-[232] above. It would similarly be open to a jury in a new trial to accept the central aspects of SG’s testimony. Indeed, Cavanagh did not contest that he was present at the house, together with his co-accused, in the small hours of 25 October 2018, or that the deceased was stabbed to death in Bedroom 3 at that time.

10. [289]

    Under s 6(2) of the Criminal Appeal Act 1912 (NSW), upon allowing Cavanagh’s appeal the Court must “quash the conviction and direct a judgment and verdict of acquittal to be entered”, subject to the “special provisions” of the Act. Section 8(1) is such a special provision, allowing the Court “either of its own motion, or on the application of the appellant, [to] order a new trial in such manner as it thinks fit”. Provided that the unsupportable contention of joint enterprise liability would not be advanced and that the jury would be directed to determine whether Cavanagh deliberately inflicted the fatal wound with intent to cause grievous bodily harm or death, the prerequisite of sufficient admissible evidence to justify a new trial is satisfied: The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [88]-[91] (Kiefel CJ and Keane J).

11. [290]

    Whether, in the circumstances that arise from my conclusions, the Court should order a new trial of Cavanagh was not a question argued on the hearing of the appeal. However, all relevant considerations are before the Court and the question has to be decided. The Court cannot stop at quashing a conviction and leave the issue of retrial or acquittal unresolved: The Queen v A2 at [76]-83] (Kiefel CJ and Keane J), [148] (Nettle and Gordon JJ) and [175]-[192] (Edelman J).

12. [291]

    In The Queen v Taufahema the majority (Gummow, Hayne, Heydon and Crennan JJ) identified at [49], [52] and [54]-[60] the factors that may be relevant to the Court’s exercise of its discretionary power to order a new trial. Extracts from their Honours’ judgment, as relevant to the present circumstances, are as follows (with some citations omitted):

13. [292]

    There is considerable public interest in having a jury determine the serious charge of murder against Cavanagh, upon the same evidence that was adduced against him in the trial now under consideration, but with the jury in a new trial being directed to assess that evidence on the basis of direct criminal responsibility rather than by reference to a joint criminal enterprise. The public interest outweighs the consideration of the ordeal that a new trial would involve for Cavanagh himself and for SG and other witnesses.

14. [293]

    This case does not involve the “conflict with basic principle” to which Gibbs CJ referred in Gerakiteys v The Queen (1984) 153 CLR 317 at 321; [1984] HCA 8. Although the same evidence would be adduced in a new trial, it would be relied upon to sustain the charge upon a basis of legal responsibility different from that propounded in the trial from which the appeal is brought. A new trial would not require a jury to examine the evidence for a second time against the same criteria of criminal liability.

15. [294]

    In The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 the respondent was the driver of a motor vehicle from which he and three other men alighted when the vehicle crashed. Each of the four men was armed with a revolver. One of them, not the respondent, fatally shot a highway patrolman who had been pursuing them and who had stopped near the crash scene. On a charge of murder the prosecutor opened the Crown case with an allegation that the respondent had been party to a “joint criminal enterprise […] to use a firearm to prevent their lawful arrest and detention by police”. By the end of the trial the Crown had changed its case and went to the jury with an allegation of “joint criminal enterprise to escape from lawful apprehension or detection, by the men in the car”. In this Court the alleged object of the enterprise in its second formulation was found not to be a crime. The respondent’s conviction was therefore not sustainable. A verdict of acquittal was entered. In the High Court the Crown sought an order for a new trial, stating that it would conduct the new trial on the basis of yet a third formulation of the joint criminal enterprise, namely, to carry out an armed robbery.

16. [295]

    The majority allowed the appeal and ordered a new trial. Their Honours said this:

17. [296]

    I consider that the justification for a new trial of Cavanagh on the basis of direct criminal responsibility for murder, without reliance upon joint enterprise liability, would be at least as strong as the justification for the High Court’s new trial order in The Queen v Taufahema. If this Court should make such an order in the present case, responsibility would lie with the Director of Public Prosecutions to determine whether there is a sufficient prospect of conviction to warrant proceeding further with a case framed upon the alternative basis discussed in these reasons.

Orders

1. [297]

   I propose the following orders:

   1. (1)

      Extend time for the filing of Barry Paul Cavanagh’s notice of appeal to 30 September 2022.

   2. (2)

      Grant leave to each applicant to appeal against conviction on ground 1 of their respective notices of appeal, only.

   3. (3)

      Allow each appeal, upholding ground 1 in each case.

   4. (4)

      Quash the conviction of each applicant.

   5. (5)

      Order that verdicts of acquittal be entered in respect of Sean David O’Keefe and Nathan McIvor.

   6. (6)

      Order that there be a new trial of Barry Paul Cavanagh on the charge of murder, that charge not to be prosecuted upon the basis of liability arising from a joint enterprise with Sean David O Keefe and/or Nathan McIvor.

2. [298]

   R A HULME AJ: I shall deal first with the substantive grounds of appeal relied upon by the applicants McIvor and O’Keefe before returning to Ground 1 for each applicant which asserts that the verdicts of guilty of murder are unreasonable.

Ground 3 (McIvor) A miscarriage of justice resulted from the absence of directions to the jury regarding evidence relied upon by the prosecution as an admission of murder.

1. [299]

   These grounds are interrelated and were dealt with together in the applicant’s submissions. They relate to a covertly recorded conversation between Mr McIvor and his girlfriend Amanda Robinson on 15 February 2019 in their home. It was “Item 134” in Exhibit S, a compilation of audio and video recordings. [13] There were nine covertly recorded conversations involving Mr McIvor in this compilation: two were telephone conversations with his father (Items 114 and 116) and the balance were in-person conversations with Ms Robinson (Items 124, 128, 129, 131, 134, 150 and 152).

2. [300]

   The transcript of Item 134 was as follows:

3. [301]

   A car belonging to Mr McIvor’s parents which had been used to transport the body of the deceased had been seized by police. The conversation in Item 134 was subsequent to that. [14] In cross-examining Detective Sergeant Tanya Smith, the officer in charge of the investigation, counsel for Mr McIvor asked whether the reference to “interviewing Mum and Dad” was a reference to the police interviewing Mr McIvor’s parents and she said she believed it was. [15]

4. [302]

   The Crown Prosecutor made a brief submission about this conversation in his closing address (“the impugned passage”): [16]

5. [303]

   In his closing address, counsel for Mr McIvor referred to seven of the nine covertly recorded conversations involving his client. No mention was made of the two telephone conversations with his father (which concerned him borrowing his parents’ car). He reviewed the conversations in Items 124, 131 and 150 in detail, making a submission in respect of each of them that the jury should disregard them. As to the other four conversations he said: [17]

6. [304]

   In the course of summarising the Crown case in his summing up, the trial judge said: [18]

7. [305]

   His Honour reminded the jury of the submissions made by Mr McIvor’s counsel about the conversations in Items 124, 131 and 150 of Exhibit S but refrained from saying anything about what counsel said about the others, including Item 134. [19]

8. [306]

   Senior counsel for Mr McIvor argued that the Crown relied upon this evidence “as an admission of guilt of murder”. [20] After quoting what the prosecutor had said in his closing address, he argued that “this was a submission that the appellant considered, that is, believed, that he was guilty of murder. That is a submission that he had admitted committing murder.” The judge did not give any directions to the jury about considering alternative explanations. Authorities were cited for the proposition that careful directions are required where there is uncertainty as to what an admission relates to: Christian v The Queen [2012] NSWCCA 34; (2012) 223 A Crim R 340 at [70]-[85]; Choudhary v The Queen [2013] VSCA 325 at [54]-[56]; R v BCQ [2013] QC 388; (2013) 240 A Crim R 153 at [96]-[102]; and Payne v The Queen [2015] VSCA 291 at [10]-[14]. [21]

9. [307]

   It was submitted that the jury should have been directed they could only use the evidence if satisfied Mr McIvor was admitting that he had committed murder (or alternatively, at least manslaughter). Other alternative possibilities that the jury should have been directed to consider were that the accused had a belief he had committed only manslaughter, or that he believed he was an accessory after the fact to murder, or that he was innocent but believed he would be convicted of murder nonetheless. [22]

10. [308]

    It was submitted that counsel at trial “chose to say nothing about this evidence in final address”. In this circumstance, despite counsel not requesting the judge to give any directions, it was said to be incumbent upon the judge to give directions about the alternative explanations above because there was a risk the jury would erroneously give the evidence too much weight. Even if there was no “wrong decision on any question of law” (s 6(1), Criminal Appeal Act 1912 (NSW)) there was a miscarriage of justice because the applicant had lost a real chance of acquittal of murder that was fairly open. [23]

11. [309]

    The Crown submitted that no directions were required. This case was unlike those such as Christian v R where it was held that directions were required to inform the jury of available alternative explanations for representations made by an accused. The failure of counsel to ask for a direction indicated counsel did not see the need for one. Reference was made to what counsel had said in closing address (that Item 134, and other items in Exhibit S, “speak for themselves and there is nothing I really need to say to you”). The Crown suggested counsel’s approach appeared to be to play down the evidence rather than to analyse it in detail. [24]

12. [310]

    In reply, senior counsel for Mr McIvor maintained that the Crown Prosecutor at trial, by his submission, “in the context of discussing the murder, he considers that he’s goneski”, had invited the jury to reason that the accused believed that he was guilty of murder.

13. [311]

    R v Oth [2022] QCA 53 and R v WBS [2022] QCA 180 were cited as further examples of it being held on appeal that there was error in not directing a jury where there is uncertainty as to what an alleged admission relates to. [25]

14. [312]

    In oral submissions, the Crown took the Court to the evidence of Mr O’Keefe which was to the effect that he and the deceased were in a bedroom; the deceased attacked; he had responded by way of self-defence; and that in the course of this Mr McIvor came into the room and joined the fight in order to defend Mr O’Keefe. The Crown contended that the effect of what the Crown Prosecutor submitted to the jury was that the “I am goneski” statement by Mr McIvor was relied upon as contradicting the evidence that Mr McIvor had acted in defence of Mr O’Keefe; that was how “it was left to the jury” by the judge, “no self-defence was at play”. [26]

15. [313]

    In his oral reply, senior counsel for Mr McIvor submitted that what is extracted from the summing up above at [304] about the Crown saying that “I am goneski” meant that self-defence was not in play was simply a summary of a Crown argument, not a direction, and what the Crown had said was much broader and not limited to self-defence. The jury were invited by the Crown to use the evidence in a particular way without being directed by the judge about the care with which that had to be done. [27]

16. [314]

    The cases cited by senior counsel for Mr McIvor (see above at [306] and [311]) for the proposition that careful directions are required where there is uncertainty as to what an alleged admission relates to were all concerned with child sexual assault offending. There was controversy, ambiguity or uncertainty as to what a jury might make of post-offence conduct or statements made by the accused with potential the jury could have concluded they constituted an admission of guilt or consciousness of guilt. The proposition for which the cases were relied upon is uncontroversial. It is of note, however, that two of the cases made reference to Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 at [34] where Gleeson CJ and Hayne J, with reference to Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 and Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, said:

17. [315]

    An “Edwards direction” derives from the judgment in that case of Deane, Dawson and Gaudron JJ at 210-211:

18. [316]

    Although Edwards and Zoneff were concerned with lies, the discussion of when jury directions are required and their content are of broader application to post-offence conduct. The highlighted portion of the passage from Dhanhoa is pertinent to the present case where there is an issue between the parties as to whether the prosecution was relying upon the statement of Mr McIvor (“I’m goneski”) as evidence of guilt.

19. [317]

    It is appropriate to consider these grounds with clarity as to what were the principal issues in the trial.

20. [318]

    The Crown case was that the three accused engaged in a sustained or prolonged physical assault on the deceased, acting together with the intention of causing really serious injury, or at least contemplating that such injury might be inflicted. They were not acting in self-defence. The jury were directed that if the Crown had not proven the first limb of self-defence (that McIvor did not believe it was necessary to act in defence of another), a verdict of guilty of manslaughter on the basis of excessive self-defence could be returned if it had proven the second limb (that McIvor’s response was excessive in the circumstances that he perceived). In the event the Crown had not proven the intention and foresight in respect of really serious injury, a verdict of guilty of manslaughter was available if the jury were satisfied there was an unlawful and dangerous act.

21. [319]

    In closing address, counsel for Mr McIvor neatly summarised his client’s case: [28]

22. [320]

    After informing the jury of the two limbs of self-defence and reminding them that the onus of proof was upon the Crown, counsel continued: [29]

23. [321]

    Rather than relying upon the evidence of Mr O’Keefe, counsel for Mr McIvor relied upon the evidence given by Ms Amanda Robinson. Her evidence is summarised in the judgment of Rothman J at [124]ff.

24. [322]

    The issue joined between the Crown and Mr McIvor was whether he was a participant in a joint criminal enterprise to intentionally inflict really serious bodily harm (alternatively to assault) the deceased as the Crown contended, or whether it was a reasonable possibility that he was not because he was acting in defence of another (and/or himself). The Crown contended there was no self-defence and that the “I am goneski” statement made by Mr McIvor supported that proposition.

25. [323]

    The submission by the Crown Prosecutor in the impugned passage that “there was no self-defence at play here” would have been understood by the jury from what the prosecutor had said shortly before (three transcript pages) when he started to talk about self-defence. He indicated (correctly) that it was “for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused either or collectively [sic], their acts were not done in self-defence”. After developing that point briefly, he said: [30]

26. [324]

    The approach taken by counsel for Mr McIvor in closing address is of some relevance. Counsel can be taken to have understood the point made by the Crown about Item 134 in Exhibit S. He chose to present arguments to the jury about three other covertly recorded conversations between Mr McIvor and Ms Robinson, in each case to the effect that the jury should disregard them. But in relation to Item 134 (and 128, 129 and 152), in the passage quoted above (at [303]) he conceded they were relevant and confined himself to saying, “they speak for themselves”. [31] It would have been open to the jury to assume from this that counsel was unable to make any submission that would have assisted his client in relation to that evidence or to say anything to counter the Crown submission.

27. [325]

    There was specific agreement by the prosecutor and no dissent by any of the accused when the judge asked whether manslaughter should be left to the jury (by way of excessive self-defence and by unlawful and dangerous act). [32] Yet at no stage did the prosecutor expressly submit, let alone imply, that “I am goneski” could assist the jury to determine that Mr McIvor was guilty of murder as opposed to manslaughter (or anything else).

28. [326]

    Senior counsel for Mr McIvor portrayed the Crown as having submitted that “I am goneski” was an admission to committing murder; the applicant considered or believed that he was guilty of murder. The Crown Prosecutor did not say that. True it is that he referred to “murder” in the impugned passage of his address, but not expressly to the crime of murder. He used the terms “murdered” and “the murder”. They are highlighted for convenience in the following repetition of the passage: [33]

29. [327]

    In the context in which those references to murder appear, the jury are unlikely to have taken the prosecutor to have been referring literally to a homicide constituted by the essential elements of murder, or the crime of murder to the exclusion of anything else. More likely the jury would have taken the prosecutor to be speaking generally, using “the murder” as synonymous to “the killing”, or “the homicide”.

30. [328]

    The term used by the Crown Prosecutor in the impugned passage of his closing address, “the murder”, was a term used frequently throughout the trial in reference to the incident in which the deceased had been killed. There was no suggestion it was ever intended to refer literally or specifically to the crime of murder as opposed to manslaughter or other forms in which a person may be criminally liable in relation to a homicide. There are many examples of which the following are but some.

31. [329]

    Counsel used the term in questioning witnesses, as did witnesses in their responses. For example, Mr Terracini SC (who appeared for Cavanagh) put to [SG], “You’ve tried to poison the police’s mind into believing that he had something to do with the murder, haven’t you?” [34]

32. [330]

    In cross-examining Detective Sergeant Smith, counsel for McIvor used the term “the murder” interchangeably with the term “this matter”: [35]

33. [331]

    Witness A used the expression in answering a question asked by the Crown Prosecutor about conversations he had with Cavanagh: [36]

34. [332]

    [SG] written undertaking to give evidence for the prosecution was read out to the jury by the Crown Prosecutor. It included: [37]

35. [333]

    The trial judge used the term in this general, non-specific way. For example, in explaining to the jury the effect of a certificate under s 128 of the Evidence Act 1995 (NSW) having been provided to [SG], he said: [38]

36. [334]

    After photographs of various knives were admitted without objection, both the judge and counsel for Mr McIvor referred to “the murder weapon” without any suggestion they were referring literally to a knife that had been used in a deliberate act by some person with the intention of causing really serious bodily harm and which had caused the death of the deceased. [39]

37. [335]

    The same can be said about Mr O’Keefe’s use of the term in answer to a question asked by the prosecutor: [40]

38. [336]

    Mr Terracini SC used the term in a non-specific sense in his closing address. For example, when he contended that [SG] was “protecting herself of the involvement in the murder”. [41]

39. [337]

    During the hearing of the application in this Court, senior counsel used the term, seemingly without intending to refer to “murder” literally. He referred to the conversation in Item 134 as being “on the subject matter of the murder” and in addressing Ground 1 in referring to “the murder weapon”. [42]

40. [338]

    I am not persuaded that the Crown Prosecutor would have been taken by the jury to have submitted that Mr McIvor had admitted to murder, as opposed to manslaughter or some other form of criminal liability relating to the homicide of Jamie Phillips. The submission was clearly intended to convey and would have been taken by the jury to have conveyed, that it was a submission that “there was no self-defence at play”. In other words, that the defence case which contended otherwise should not be accepted.

41. [339]

    It is entirely unsurprising that no complaint was raised by defence counsel about the prosecutor’s submission. The same can be said about defence counsel making no submission in rebuttal, nor asking the trial judge for a direction to the effect of what it is now contended should have been given to the jury. The latter tends against a finding that there was present a perceptible risk of a miscarriage of justice: De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] (Kiefel CJ, Bell, Gageler and Gordon JJ).

42. [340]

    There was no error on the part of the trial judge for not giving a direction he was not asked to give. There was no perceptible risk of a miscarriage of justice that required a direction to be given.

43. [341]

    Leave to allow Grounds 2 and 3 should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Ground 5 (McIvor) A miscarriage of justice resulted from the absence of directions to the jury regarding evidence relied upon by the prosecution to show consciousness of guilt of murder.

1. [342]

   These grounds are also interrelated and were dealt with together in the applicant’s submissions. They concern evidence that the applicant was involved in driving the body of the deceased away from [SG’s] home and dumping it some distance away as well as burning the deceased’s clothes. [43]

2. [343]

   At the close of the evidence and prior to addresses the judge initiated a discussion with counsel as to jury directions that might be required. It commenced: [44]

3. [344]

   The Crown Prosecutor said this in his closing address: [45]

4. [345]

   The prosecutor referred to the evidence of Ms Robinson of Mr McIvor having told her about the incident, how he had attempted to intervene to help his mate(s), and how he was later involved in dumping the body and burning the clothes. Her evidence included how scared Mr McIvor was of “his co-eys and what was going to happen if he didn’t get rid of the stuff”. [46]

5. [346]

   The prosecutor then said: [47]

6. [347]

   Defence counsel addressed the issue in this way: [48]

7. [348]

   The trial judge summarised the prosecutor’s argument during his summing up: [50]

8. [349]

   His Honour summarised the defence argument as well: [51]

9. [350]

   Defence counsel did not request any directions concerning the use the jury might make of this evidence.

10. [351]

    After quoting the second of the above extracts from the Crown Prosecutor’s closing address, senior counsel for Mr McIvor contended, “this was a submission that it should be inferred from this conduct that the appellant ‘very well knew’ that he had participated in the crime of murder”. [52]

11. [352]

    Directions were said to have been necessary because there was a need for the jury to consider alternative explanations for what the applicant did other than consciousness that he was guilty of murder. Various authorities were cited for the proposition that careful directions will generally be required where conduct said to demonstrate consciousness of guilt may relate to different offences (for example, manslaughter as opposed to murder). Such directions were said to be particularly necessary because the Crown Prosecutor presented the issue as a choice between the applicant not being guilty of any offence (i.e. a “self-defence situation”) and being guilty of murder. [53]

12. [353]

    As to the directions that should have been given, senior counsel for Mr McIvor submitted: [54]

13. [354]

    The submissions made in respect of Grounds 2 and 3, summarised above at [308], were also relied upon in relation to these grounds. It was, again, submitted that there was a real risk that the jury would erroneously give too much weight to the evidence and the applicant had lost a real chance of acquittal of murder that was fairly open. Consequently, there was a miscarriage of justice and leave under r 4.15 should be granted.

14. [355]

    The Crown submitted that it relied upon the disposal of the deceased’s body as rebutting the claim of self-defence, not as consciousness of guilt of the offence of murder. This was similar to the situation in Gall v R; Gall v R [2015] NSWCCA 69 at [75]-[96]. A consciousness of guilt direction was not required. [55]

15. [356]

    The Crown also argued that it is understandable that defence counsel would not have sought a direction as to duress being an alternative explanation for the disposal of the body and the bags of items. In Ms Robinson’s evidence, the applicant had spoken of threats from his “coees”, and yet at trial Mr McIvor relied upon the evidence of Mr O’Keefe as supporting his defence, namely that he had seen Mr O’Keefe under attack from the deceased and that he had involved himself in the fight in order to defend Mr O’Keefe. Asserting a claim of duress as an explanation for his post-offence conduct would imply that Mr O’Keefe had exerted the duress because he was conscious of his own guilt of murder and was not acting in self-defence. Accordingly, the Crown submitted that a direction was not sought by counsel for Mr McIvor as a matter of forensic choice, not through oversight. [56]

16. [357]

    As with Grounds 2 and 3, the submissions for Mr McIvor attempt to attribute more to the Crown Prosecutor’s submissions to the jury than is warranted. The prosecutor did not make a submission that “the appellant ‘very well knew’ that he had participated in the crime of murder”, and it would not have been inferred by the jury that he did. For similar reasons as for Grounds 2 and 3, the crux of the prosecutor’s submission in relation to the disposal of the body and the other items was that it was inconsistent with Mr McIvor having acted in defence of another, or himself. The highlighted portions in the passages extracted above make that abundantly clear.

17. [358]

    The Crown Prosecutor did not suggest that this evidence established the elements of the crime of murder. At its highest, his submission referred to Mr McIvor being “implicated in the crime” and asked rhetorically, “why engage in any of it if he didn’t engage in the crime itself”.

18. [359]

    The reference to “the crime” would not have been taken by the jury to mean “murder” literally. Considered in context rather than isolation, this would have been taken to a general reference to the killing of the deceased being carried out in the absence of self-defence.

19. [360]

    The Crown Prosecutor informed the judge prior to closing addresses commencing that he was relying upon circumstances such as lies and the disposal of the body as “dispelling the suggestion that self-defence was a factual matter” rather than giving rise to an inference of consciousness of guilt. The Crown Prosecutor referred to a distinction made in Gall v R; Gall v R. No issue was taken with this by any defence counsel. [57]

20. [361]

    The Crown maintained reliance upon that case in this Court. Mr Odgers SC for Mr McIvor sought to distinguish it. It was his contention that in contrast to the present case, Gall v R; Gall v R was a case in which it “was not necessary to give a ‘consciousness of guilt’ direction because the evidence in question was relied upon by the prosecution in respect of the central issue in the trial – whether the prosecution had negated the innocent explanation advanced by the appellant to justify his shooting of the deceased (that he was acting in self-defence)”. This supposed distinction was based upon a misapprehension that the trial judge in the present case did not leave self-defence (including defence of another) to the jury. It emerged during the hearing however that the trial judge in fact did so. [58] Mr Odgers then returned to the point that the prosecutor relied upon the things Mr McIvor said to Ms Robinson for an inference that he knew he was guilty of murder. That submission fails on the basis that it does not accurately portray the prosecutor’s submission.

21. [362]

    Given the Crown’s reliance upon Gall v R; Gall v R it is worth examining it more closely. It concerned a shooting murder at industrial premises owner by Bruce Gall and occupied by his son, Kevin Gall. There was a dispute between the deceased and Kevin Gall. The deceased and another man, Michael Fox, came to the premises one day in Mr Fox’s car and the events culminated in Kevin Gall shooting the deceased who died at the scene. Post-offence conduct by Kevin Gall included disposal of the body by burial in remote bushland, removal of the hard drive from the CCTV camera at the crime scene, destruction of fired cartridge cases at the scene, destruction of the van he had used to transport the body of the deceased, and the spray painting of Mr Fox’s car to disguise it.

22. [363]

    The trial judge told the jury that the Crown relied upon those matters “to show that whoever destroyed or disposed of the evidence knew that what he had done was wrong and was trying to hide the wrongdoing”. [59]

23. [364]

    Kevin Gall contended on appeal that the judge erred in failing to direct the jury in terms of consciousness of guilt reasoning. He submitted that the jury should have been directed that they could only use the various matters against him if they found he had done things out of a consciousness of guilt of the actual offences with which he had been charged and not out of fear of retribution.

24. [365]

    It seems that much of the post-offence conduct was not in dispute, although the reason for doing them was. One explanation suggested was that Kevin Gall had acted out of fear of retribution of an outlaw motorcycle gang. In relation to the murder charge, it was submitted that the post-offence conduct was not logically available to distinguish between a consciousness of guilt of murder as opposed to manslaughter on the basis of excessive self-defence.

25. [366]

    Hoeben CJ at CL commenced his consideration of this ground of appeal by identifying the rationale behind the need for a consciousness of guilt direction by a trial judge. After referring to R v Cook [2004] NSWCCA 52 and R v Heyde (1990) 20 NSWLR 234, his Honour said: [60]

26. [367]

    His Honour observed that there was an “overwhelming inference” that no-one at trial considered that a direction was necessary. He then said: [61]

27. [368]

    Noting that Kevin Gall admitted he had shot the deceased and also that he fired shots thereafter while Mr Fox was running away, Hoeben CJ at CL said:

28. [369]

    Senior counsel for Mr McIvor sought to distinguish the present case from Gall v R; Gall v R: [62]

29. [370]

    A controversial aspect of this submission is the claim that the jury were “told by the Crown Prosecutor that all of this other stuff shows that he knew he was guilty of murder and they’re being invited to use that to support an inference, a conclusion beyond reasonable doubt of the elements”. As indicated above, this does not fairly or accurately portray the Crown Prosecutor’s submissions to the jury. There was no suggested that this evidence would enable to the jury to determine that Mr McIvor was guilty of murder as opposed to manslaughter.

30. [371]

    As to the other suggested alternative explanation available in respect of the evidence, where the defence case was that Mr McIvor’s actions concerning the disposal of the body and destruction of evidence were motivated by a fear of his “co-eys”, it would not have been favourable to him to have the trial judge suggest to the jury that he might have done such things out of a consciousness of guilt of manslaughter. The suggested exculpatory explanations for his post-offence conduct (helping friends who he knew were implicated in the murder, whether out of fear or not) were the essence of the case that was patently clear and need no further amplification by the trial judge.

31. [372]

    Gall v R; Gall v R is very similar to the present case in this respect. It would have been confusing and unhelpful to the defence case to have the trial judge give consciousness of guilt directions to the jury where the sole basis for which the post-offence conduct evidence was relied upon by the Crown was to prove the critical issue that was in play, self-defence.

32. [373]

    Leave to allow Grounds 4 and 5 should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 2 (O’Keefe) – A miscarriage of justice resulted from the absence of directions to the jury as to how the evidence of the appellant’s participation in the disposal of the body might be used.

1. [374]

   This ground is allied to Ground 5 in Mr McIvor’s case. In so far as it arises in the case of Mr O’Keefe it is based upon his involvement in disposing of the body of the deceased.

2. [375]

   The Crown had put to Mr O’Keefe in cross-examination that he disposed of the body because he “knew that this wasn’t done in self-defence” but he denied it. [63] Aside from expressing regret for having done so Mr O’Keefe did not provide an alternative explanation.

3. [376]

   The proposed ground of appeal concerns the following part of the submission by the Crown Prosecutor set out above (at [344]):

4. [377]

   Senior counsel who appeared for Mr O’Keefe at trial did not advance an alternative explanation for his client’s involvement in the disposal of the body. [64] He argued that in respect of various lies he had told that there may have been panic and shock as well as a fear of being disbelieved if the police had been contacted and told that the deceased had been killed as an act of self-defence. [65]

5. [378]

   The relevant part of the trial judge’s review of the prosecutor’s submissions set out above (at [348]) is:

6. [379]

   In relation to the defence case on post-offence conduct (albeit lies), his Honour reminded the jury: [66]

7. [380]

   Given defence counsel had made no submission expressly referable to disposal of the body it is unsurprising the trial judge said nothing about the defence case on the subject.

8. [381]

   Referring to submissions made on behalf of Mr McIvor, it was submitted by counsel for Mr O’Keefe that careful directions to the jury as to how they might use the evidence were required. An alternative explanation for Mr O’Keefe’s conduct in disposing of the body was that he was guilty of manslaughter on the basis of excessive self-defence. Another was that he was worried about how the circumstances might be portrayed, or about the disclosure of other offending (namely, drugs) if he did not do so. It was submitted that a direction as to alternative explanations for the conduct other than as evidence that Mr O’Keefe was not acting in self-defence and thereby guilty of murder was required in the circumstances. [67]

9. [382]

   It was accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules applied. It was submitted that there was a miscarriage of justice warranting the grant of leave because Mr O’Keefe had lost a real chance of acquittal fairly open in relation to the charge of murder. That was so particularly for three reasons:

10. [383]

    The Crown submitted that a consciousness of guilt direction was not required. It had contended at trial that the evidence negatived the claim of self-defence, contrary to submissions by Mr O’Keefe in this Court. The circumstances were similar to those in Gall v R; Gall v R.

11. [384]

    It was implicitly contended in the submissions for Mr O’Keefe that the Crown had argued that the evidence was a basis for an inference that “he was not acting in self-defence and [was] thereby guilty of murder”. However, that is not what the Crown Prosecutor said. As he said in the sentence quoted above (at [376]), the evidence was simply “relied upon by the Crown to rebut the suggestion that there was any self-defence here”.

12. [385]

    The judge reminded the jury of senior counsel’s reference to Mr O’Keefe panicking and possibly not thinking he would be believed if he reported to police that the deceased had been killed in an act of self-defence. [69] If the jury accepted that, it may be that it would have been taken into account as well in respect of the conduct in disposing of the body.

13. [386]

    Senior counsel for Mr O’Keefe is a very experienced and astute practitioner in criminal law and it is of considerable significance that he did not see the need to make any submission specifically directed to the subject of his client’s disposal of the body of the deceased. This suggests that his portrayal of Mr O’Keefe’s state of mind after the death of the deceased was thought to be sufficient and that no further submission, nor request of the trial judge for direction was necessary in the atmosphere of the trial.

14. [387]

    The reasoning provided above for refusing to allow Mr McIvor to rely upon his Grounds 4 and 5 applies in respect of this ground for Mr O’Keefe. There was no miscarriage of justice. Mr O’Keefe did not lose a chance of acquittal that was fairly open.

15. [388]

    Leave to allow Ground 2 should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 3 (O’Keefe) – The trial judge erred in excluding part of the proposed tendency evidence.

1. [389]

   Before the trial began the trial judge heard and determined an objection by the Crown to tendency evidence being adduced in Mr O’Keefe’s case. According to a Tendency Notice, [70] the tendency sought to be established was of the deceased:

2. [390]

   There were 14 items of evidence the substance of which was said to establish these tendencies.

3. [391]

   The tendency was said to be relevant to a number of facts in issue, namely whether on 25 October 2018 the deceased: [71]

4. [392]

   The judge upheld the Crown’s objection to the admissibility of 2 of the 14 items of evidence. They were items (v) and (vi):

5. [393]

   The judge provided reasons for upholding the objection in R v O’Keefe [2021] NSWSC 6:

6. [394]

   Counsel for Mr O’Keefe submitted that there was significance to the proposed tendency evidence in items (v) and (vi) because of the close temporal proximity to the charged incident and also because it could demonstrate that the deceased was seriously drug affected the day prior, was using a knife, acting violently and irrationally and was potentially in some kind of delusional or psychotic state consistent with the expert evidence adduced in the defence case. [72]

7. [395]

   It was accepted that the difference in the accounts of Mr Smith on the one hand and Mr Anderson and Ms Lawrence on the other “might well be … because they were referring to different incidents”. [73]

8. [396]

   Ms Lawrence spoke of a man who had introduced himself as “Jamie”. When she subsequently saw on the news that Jamie Phillips had been killed, she realised it was the same person. Mr Smith said in his statement that he was told by either Mr Anderson or Ms Laurence that the man he encountered was Jamie Phillips after they had seen the news of a male person being murdered in Rosemeadow. Counsel for Mr O’Keefe submitted that on the assumption that Ms Lawrence was available, Mr Smith could have given evidence about what he was told about the identity of the man pursuant to s 66 of the Evidence Act 1995 (NSW) (the maker available exception to the hearsay rule). [74]

9. [397]

   It was submitted, uncontroversially, the assessment of significant probative value for the purposes of s 97(1)(b) of the Evidence Act involves the evidence being taken at its highest without any consideration of credibility or reliability. It was also submitted that it was not for the judge at this point to consider whether the party seeking to adduce the evidence would ultimately be able to get it into admissible form. The evidence was “capable”, if accepted, of identifying the deceased as the person described by Mr Smith. Accordingly, the judge erred in taking into account the perceived admissibility of the evidence in determining whether it had significant probative value, or he erred by treating its status as hearsay as a matter informing its credibility or reliability. [75]

10. [398]

    His Honour indicated earlier in his judgment (at [24]) that he was prepared to consider the admissibility of the tendency evidence on the basis of the substance of what was disclosed in the tendered material. One of the bases upon which the Crown objection was made was that items (vii)-(xiv) were only sought to be established by the tender of police facts sheets in respect of offences for which the deceased had been charged. His Honour adopted the approach taken by Beech-Jones J (as his Honour then was) in R v Bryce (No 2) [2014] NSWSC 498 at [15] who, when considering the admissibility of reports on the police computer system (COPS), assumed the accused would be able to adduce the substance of the evidence in admissible form. Accordingly, it must have been a matter of substance rather than form which led his Honour to the conclusion that the evidence of the events described in items (v) and (vi) were inadmissible.

11. [399]

    There is also no indication in the judge’s reasons of him having regard to credibility or reliability. He twice referred to taking the evidence at its highest: R v O’Keefe [2021] NSWSC 6 at [24], [37].

12. [400]

    The problem with the evidence was not merely one of form. It was open to the judge to consider that Mr Smith’s description of his interaction with a male person at the unit complex where Mr Smith lived was different to what Mr Anderson and Ms Lawrence described. Counsel for Mr O’Keefe in this Court accepted that. It was thereby open to the judge to consider that Mr Anderson or Ms Lawrence did not identify to Mr Smith the person he saw.

13. [401]

    For these reasons there was no “wrong decision of any question of law”: s 6(1) of the Criminal Appeal Act.

14. [402]

    It might also be observed that there was no miscarriage of justice by reason of the fact that the question of obtaining further evidence to clarify that which was available at the time of the pre-trial hearing was not foreclosed to Mr O’Keefe’s legal representatives by his Honour’s ruling. There was nothing to prevent steps being taken to seek clarification from any of Ms Lawrence and Messrs Anderson and Smith and re-agitating the issue of admissibility.

15. [403]

    When this was raised with counsel for Mr O’Keefe in this Court, he submitted that the evidence was already admissible pursuant to s 66 if Mr Anderson or Ms Lawrence were available at the trial. [76] However, this was not a matter that was raised for the consideration of the trial judge.

16. [404]

    Ground 3 must be rejected.

Ground 1 (Each Applicant) The verdict is unreasonable.

1. [405]

   In relation to the unreasonable verdict ground raised by each of the three applicants, I have had the advantage of reading the draft judgments of Rothman and Fagan JJ and am grateful for their respective analyses of the evidence.

2. [406]

   I share with my colleagues a reasonable doubt as to the applicants’ guilt of murder on the joint criminal enterprise and extended joint criminal enterprise bases asserted by the Crown. I am of the view that verdicts of guilty of manslaughter cannot be substituted. The power to do so is provided by s 7(2) of the Criminal Appeal Act which is in the following terms:

3. [407]

   The following observations of the plurality in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [43] are apposite:

4. [408]

   I shall return to this but I should first explain why manslaughter on an extended joint criminal enterprise basis remains a viable basis upon which each of the applicants could have been convicted.

5. [409]

   The evidence was capable of establishing each of the applicants were parties to an agreement to assault the deceased and that they each contemplated the possible infliction of harm by which the deceased would be exposed to an appreciable risk of sustaining serious bodily injury. That is in fact what occurred and resulted in death being caused.

6. [410]

   The factual matters that have influenced me to this conclusion commence with acknowledgment that it was well open to the jury to conclude that SG’s evidence that each of the applicants were present in the relatively small, furnished bedroom where and when the deceased was assaulted was correct.

7. [411]

   SG’s evidence included her hearing each of the applicants saying things that were consistent with their participation in some form in the attack upon the deceased, be that physical participation or urging and encouragement by presence and utterances. This included, “It’s just us boys sorting out our shit” (perhaps O’Keefe or McIvor), “Shut the fuck up” (sounded like Cavanagh), “You want to play games” (sounded like McIvor), and “Be quiet” (sounded like O’Keefe).

8. [412]

   SG’s evidence also included a description of things said and done by each applicant outside of the bedroom and after the attack upon the deceased, each of which is also consistent with having been jointly involved in, rather than innocently present during, the events in the bedroom. This included Mr McIvor taking her phone from her, asking about whether the CCTV was recording, and telling her to “shut up”, and statements made by Mr Cavanagh asking, “Should we take her out too”?

9. [413]

   I am mindful of the fact that both Mr McIvor and Mr O’Keefe contested the Crown case by accepting they were involved in a physical altercation with the deceased but contending their involvement was different to the way contended for by the Crown. I appreciate that the Crown’s disproof of their exculpatory explanations did not establish beyond reasonable doubt the converse. But disbelief of the exculpatory aspect does not mean their concessions of physical involvement should be disregarded entirely. There was no resiling from them in this Court. In fact, subject to the Court being satisfied that manslaughter was not an unreasonable outcome, senior counsel for Mr McIvor accepted that if the Court was satisfied the murder conviction was unreasonable, “the appropriate order would be to order a new trial for manslaughter”. [77]

10. [414]

    There are other discreet items of evidence, such as that relating to DNA and admissions made by each applicant as to their involvement in some form of physical altercation with the deceased. I do not intend to survey the evidence exhaustively as it is comprehensively set out in the judgments of the other members of the Court.

11. [415]

    The reason I cannot agree that it is open to substitute verdicts of guilty of manslaughter (Rothman J at [213]) is because the power provided by s 7(2) of the Criminal Appeal Act is not enlivened. There is no problem in relation to the first requirement, that “the jury could on the indictment have found the appellant guilty of some other offence”. However, as the plurality in Spies v The Queen noted at [43], s 7(2) also requires that:

12. [416]

    In the present case, the jury must have been satisfied that each applicant was guilty of murder on the basis they were participants in a joint criminal enterprise to inflict grievous bodily harm, or to assault the deceased with contemplation of possible intentional infliction of grievous bodily harm. The Court is unanimously of the view that this was unreasonable. While it may be accepted the jury were satisfied each applicant was a participant in a joint criminal enterprise to assault the deceased there was no finding as to whether the act causing death was “unlawful” and “dangerous”. It could be confidently assumed the jury would have been satisfied of those elements of manslaughter. However, the plurality in Spies v The Queen (at [47]) cautioned that the power conferred by s 7(2) “must be exercised with great caution” lest “trial by judge is substituted for trial by jury”.

13. [417]

    Fagan J has concluded that the there should be a retrial for Mr Cavanagh on a charge of murder. The Crown did not seek this and I do not believe it should be given an opportunity to pursue a case for murder it elected not to pursue in the first place.

14. [418]

    My conclusion is that the unreasonable verdict ground (Ground 1) for each applicant should be upheld and that there should be an order pursuant to s 8(1) of the Criminal Appeal Act that there be a new trial on manslaughter.

15. [419]

    The combined effect of s 128 of the Criminal Procedure Act 1986 (NSW) and the Supreme Court Practice Note SC CL 2 (pars 20-24) is that indictments for manslaughter are to be presented in the District Court unless for a particular indictment an exemption has been granted by the Chief Justice. Absent any such exemption, which is a matter for the Director of Public Prosecutions to seek if thought appropriate, there should be an order for the matter to be listed for mention in the District Court on Friday, 14 July 2023.

Orders

1. [420]

   I propose that there be orders to the following effect:

   1. (1)

      Extend time for Mr Cavanagh to file his notice of appeal to 30 September 2022.

   2. (2)

      Leave to appeal granted to each applicant to appeal against conviction upon Ground 1.

   3. (3)

      Allow the appeal in each case and quash the convictions for murder.

   4. (4)

      Remit the case of each applicant for retrial on a charge of manslaughter.