Smith v R

1. [1]

   BEECH-JONES CJ at CL: On 9 November 2020, the applicant for leave to appeal against his conviction, Justin Smith, was arraigned before Harrison J and a jury panel on an indictment that charged him with the murder of Luke Freeman on 6 January 2019 at New Lambton Heights. He pleaded not guilty and the trial ensued. In the circumstances explained below, the trial judge directed the jury as to the availability of the alternative verdict of manslaughter and the statutory alternative offence of assault occasioning death while intoxicated contrary to s 25A(2) of the Crimes Act 1900 (NSW).

2. [2]

   On 19 November 2020, the jury returned a verdict of not guilty of murder but guilty of the offence under s 25A(2). This is to be taken as an acquittal on manslaughter. On 15 July 2021, his Honour sentenced the applicant to imprisonment for 10 years and 8 months with a non-parole period of 8 years commencing on 5 January 2019. Subsection 25B(1) of the Crimes Act specifies that a sentence and non-parole period for an offence under s 25A(2) must be not less than 8 years.

3. [3]

   The essence of the complaint about the conviction on appeal was the supposed inconsistency between the jury’s acquittal of the applicant on a charge of manslaughter and his conviction of the offence under s 25A(2). This inconsistency was said to arise because the jury was directed that, if it was not proven beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman, then he had to be found not guilty of all the offences. If they were so satisfied however, then it was contended that it inevitably followed that the applicant was (at least) guilty of manslaughter by a dangerous and unlawful act.

4. [4]

   As explained below, I conclude that submission must be rejected when regard is had to the scope for debate about the degree of force that might have been applied by the applicant in stabbing Mr Freeman and the deference afforded to juries applying their “innate sense of fairness and justice” (R v Kirkham (1987) 44 SASR 591 at 593; “Kirkham”) to adopt a “‘merciful’ view of the facts” (Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 367 per Gaudron, Gummow and Kirby JJ; “Mackenzie”). The applicant’s rejoinder that a conviction under s 25A(2) is not “merciful” compared to a conviction for manslaughter does not undermine that conclusion, but simply illustrates one of the many difficulties occasioned by mandatory minimum sentences in this context (as well as other contexts).

5. [5]

   To explain this conclusion, it is necessary to outline the Crown and defence cases as well as the summing up given by the trial judge to the jury.

The Crown and Defence Cases

1. [6]

   During the afternoon of 4 January 2019, the deceased, Mr Freeman, his partner, Katrina Marshall, and her brother, Daniel Marshall, were all drinking together at the Marshall’s home in South Grafton. The applicant joined them sometime between 6.00pm and 7.00pm. Another brother of Ms Marshall, Adam Marshall, joined them sometime between 9.00pm and 10.00pm. The applicant was a friend of Ms Marshall.

2. [7]

   Daniel Marshall went to bed between 12.00pm and 1.00am on 5 January 2019. It was common ground that by 3.45am the rest of the group were intoxicated. It is also common ground that around that time there was a violent altercation between the applicant and Mr Freeman in which the applicant held a knife and Mr Freeman suffered two stab wounds. Mr Freeman died in hospital on 6 January 2019 from the complications of one of those wounds. The stab wounds were inflicted by a V‑shaped kitchen knife the blade of which was 22−23cm in length. It had a straight, not serrated, edge.

3. [8]

   In short, the Crown case on the charge of murder was that the applicant deliberately stabbed Mr Freeman with an intention to cause death or grievous bodily harm. The applicant gave evidence and said that he held a knife only to defend himself and scare Mr Freeman, who was aggressive, but Mr Freeman impaled himself as he attacked the applicant.

4. [9]

   A police officer recorded brief conversations with Mr Freeman and Ms Marshall at the scene. Mr Freeman relevantly stated, “old mate came and just a little … me stomach”, and “[h]e just stabbed me in the belly and that’s about all, really.”

5. [10]

   Ms Marshall spoke to the police on the evening of 5 January 2019 at her home. The conversation was recorded on body worn camera and played to the jury.

6. [11]

   Ms Marshall provided the police with a statement the following day which was tendered. In the statement, Ms Marshall described periodic hostility between the applicant and Mr Freeman throughout the evening. She said that at around 3.30am or 4.00am their arguing became more heated. She stated that Mr Freeman and the applicant were “near the front door and were standing opposite each other”. Ms Marshall thought their argument had stopped. She said that Mr Freeman was “starting to walk out and was standing in the doorway of the front door” but did not recall seeing the applicant. Ms Marshall then had her back to both of them when she saw her brother Adam run to the front door. She turned and saw Mr Freeman “crunched over, with his head down… falling towards the ground”. She ran over. Adam held the applicant in a headlock. She saw Mr Freeman drop to the floor with blood coming from his stomach and mouth. She “think[s]” Adam handed her a bloodied knife which she recognised as a kitchen knife from a wooden knife block in their kitchen.

7. [12]

   Ms Marshall’s evidence in chief at the trial was similar to her statement. However, she said that when she turned around she saw the applicant “holding a knife”, told “[the applicant] to drop the knife” and screamed at the applicant, “[y]ou’ve stabbed him”. In cross-examination, she stated that when she turned around Mr Freeman was walking out the door and the applicant was behind him. She was shown the recording of her speaking to the police on the evening of 5 January 2019 and was taken to her statement to the police. She agreed that she did not refer to the applicant holding a knife in either of those statements, but insisted he had a “big knife”. She agreed that at one point the applicant “probably” said he was leaving and would call a taxi and that Mr Freeman “probably” said, “I’m gunna cave this cunt’s head”.

8. [13]

   Ultimately, Ms Marshall agreed that when she turned around she saw Mr Freeman and the applicant facing each other, her brother Adam holding the applicant in a headlock so that the applicant was “squashed in between” Adam and Mr Freeman and, after the melee broke up, she saw blood coming from Mr Freeman’s abdomen.

9. [14]

   In his evidence in chief, Adam Marshall said that around 3.15am he was sitting on a lounge with his sister sitting directly across from him. He said that the applicant “disappeared into the kitchen for roughly about five minutes” and Mr Freeman “was standing near the front door… to go out the front for a cigarette”. His then described the following:

10. [15]

    Mr Marshall said that he “jumped up straight away and… got [the applicant] into a headlock” and “punch[ed] him”. He said that his sister took the knife out of the applicant’s hands and placed it on the table. He was asked:

11. [16]

    Mr Marshall said he had drunk about a litre of wine. In cross‑examination he agreed “it could’ve been more” and that he was also smoking marijuana. He agreed that when their argument was escalating, the applicant was trying to placate Mr Freeman and he and his sister both told Mr Freeman to calm down.

12. [17]

    It was also pointed out that, contrary to Mr Marshall’s evidence, there was no injury on the right side of Mr Freeman’s trunk. He replied, “[w]ell that’s what I seen”. The cross‑examination continued:

13. [18]

    The applicant gave evidence. He described Mr Freeman as very aggressive. The applicant said that at the time of the incident Mr Freeman yelled, “[c]ome on, do you wanna go then, let’s go outside”, and was a little red in the face, leaning forwards and “flailing his arms around”. The applicant said he then announced he would leave and attempted to call a taxi. He sat down on the couch and heard Mr Freeman say, “I’m going to kill this cunt”. The applicant said that Mr Freeman was just inside the doorway and appeared to be picking something up. The applicant said he heard Mr Freeman say, “I’m going to cave this cunt’s head in”. The applicant then turned back into the kitchen and reached for a knife with his right hand, which he intended to scare Mr Freeman with.

14. [19]

    The applicant said he ran at Mr Freeman “to confront him” and Mr Freeman had picked up what appeared to be a pole. The applicant swung his left arm downwards to knock the pole out of Mr Freeman’s hand. The applicant said his left hand “brushed” Mr Freeman’s arm but Mr Freeman “turned right [and] walked into the knife, the knife got him in the ribs just underneath the arm”. The applicant said he pulled the knife back, stood backwards and changed the hand holding the knife (to his left hand), “at which point Adam [Marshall] jumped on my back or lunged over and reached his arm over my shoulder and put his arm around my head when clenching me in the headlock”.

15. [20]

    At a time when all three of them were close together, the applicant felt Mr Freeman press against his left hand and onto the knife. The applicant said he let go of the knife as someone was grabbing his right hand. He said that Adam Marshall then released him, the knife fell to the ground and the applicant “pushed against [Mr Freeman’s] torso and his shoulder with… both hands pushing his weight off”. Mr Freeman stood for a moment and fell backwards. The applicant then left.

16. [21]

    In cross‑examination it was suggested to the applicant by the Crown Prosecutor that both he and Mr Freeman were being aggressive towards each other and, at a time when Mr Freeman was headed towards the door to the outside of the house, the applicant grabbed a knife and stabbed him twice. It was also suggested that the stabbing only stopped through the intervention of Adam Marshall. The applicant denied all of those suggestions.

17. [22]

    One of the two wounds suffered by Mr Freeman was inflicted to his right paraumbilical being an area next to the navel on the right-hand side of the body (known as “wound A”). The other wound was to the left lateral chest (known as “wound B”). Mr Freeman died from complications arising from wound A.

18. [23]

    The forensic pathologist called by the Crown, Dr Toit-Prinsloo, said that wound A penetrated Mr Freeman “from right to left, front to back in an upwards direction” and was 30mm x 10mm wide. Wound B penetrated Mr Freeman “from left to right, front to back and downwards”. Dr Toit-Prinsloo did not proffer an estimate of the depth of wound A and accepted that any such estimate was “difficult and inherently unreliable”. He similarly could not comment on the depth of wound B. The forensic pathologist called on behalf of the applicant, Dr Duflou, agreed that it was difficult to estimate the depth of wound B but agreed that it “appears to be of a depth which is significantly less than 220 millimetres” (being the length of the knife). Dr Duflou said that wound A “seems to have gone in probably for a greater distance than the first one”.

19. [24]

    Prior to giving evidence, Dr Toit-Prinsloo had not seen the knife that inflicted the wounds on Mr Freeman. (The original pathologist who performed the autopsy had passed away and Dr Toit-Prinsloo gave evidence based on that pathologist’s notes.) Dr Toit-Prinsloo did not express any opinion on the manner in which the stab wounds were occasioned other than accepting that a stab wound could be caused by the person holding the knife stabbing someone or the victim advancing on the person and effectively impaling themselves.

20. [25]

    Dr Duflou did not feel inhibited in addressing the manner in which the knife wounds were occasioned. The effect of his evidence was that the contentions by the Crown as to how the wounds were caused and that stated by the applicant in his evidence, as well as a combination thereof, were both reasonably possible. Thus, Dr Duflou stated in cross-examination:

21. [26]

    Consistent with this, Dr Duflou was asked as follows in relation to wound A:

22. [27]

    In terms of the amount of force necessary to occasion the wounds, Dr Duflou noted:

23. [28]

    Dr Duflou added that once the skin is penetrated, the knife “will just keep on going with really very little force required” until it makes contact with something hard, such as bone.

24. [29]

    During the defence case, and in the absence of the jury, the trial judge raised with counsel the appropriate directions. The Crown Prosecutor advised his Honour that he and counsel for the applicant considered that it was appropriate to direct the jury in respect of the statutory alternative charges under s 25A(2) and (1) of the Crimes Act. The trial judge queried the path of reasoning which would lead to a consideration of those offences. The Crown Prosecutor indicated that it would arise if the jury was not satisfied that the relevant act of the applicant causing Mr Freeman’s death was “dangerous”.

25. [30]

    After the close of the defence case and just prior to the Crown Prosecutor’s address, the Crown Prosecutor advised his Honour that he did not propose to address s 25A but added, “I understand your Honour is probably obliged to”. There was no opposition to that statement by counsel for the applicant.

26. [31]

    The Crown Prosecutor’s address principally focussed on the Crown case in relation to murder. So far as manslaughter and the statutory alternatives were concerned, the Crown Prosecutor submitted that, if the jury was not satisfied the applicant had the necessary intention for murder, then “a reasonable person, not a drunk person but a reasonable person, would have appreciated that doing that [i.e. stabbing], exposed Mr Freeman to a risk of serious injury” and the applicant would be guilty of manslaughter. The Crown Prosecutor further submitted to the jury that “[i]f you have a doubt about that, that what the accused was doing was dangerous …[then] …there is a further alternative of assault, occasioning death”.

27. [32]

    Counsel for the applicant addressed the jury in relation to whether the Crown had proven beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman and whether his actions were undertaken in self-defence. So far as manslaughter and the statutory alternatives were concerned, counsel reminded the jury that if the Crown did not prove that the applicant deliberately stabbed Mr Freeman, then he was not guilty of all the offences.

The Summing Up

1. [33]

   The summing up commenced on 17 November 2020. During the summing up, the trial judge provided the jury with a handout specifying the five elements of murder relevant to this case. The second element was that it was the act of the applicant that caused Mr Freeman’s death and the third element was that the act was “deliberate”. His Honour told the jury that the second element was not in issue as it was not in dispute that Mr Freeman’s death resulted from the knife the applicant “happened to be holding at the time the wounds were inflicted”. However, his Honour told the jury that the third element was “very much in issue” in that the Crown had “to prove that the act [of the applicant]… was a deliberate act” and that it was only if the jury found “beyond reasonable doubt that it was [the applicant’s] deliberate act that killed Mr Freeman” would they then consider the next element of murder.

2. [34]

   When it came to explaining the elements of manslaughter, the trial judge emphasised that manslaughter did not arise if the jury found the applicant “was not guilty of murder because you were not satisfied beyond reasonable doubt that it was his deliberate act that killed Mr Freeman”. Thus, the jury was told that if it found the applicant not guilty of murder “upon the basis that Mr Freeman lunged at [the applicant] and impaled himself on the knife that [the applicant] was simply holding passively, no question of manslaughter would arise in this case”.

3. [35]

   His Honour then directed the jury on the elements of manslaughter by an unlawful and dangerous act. His Honour directed that “an act is dangerous if a reasonable person in the position of [the applicant] at the time the act was committed, would have realised that the act exposed another person, whether it be Mr Freeman or not, to a risk of serious injury”. His Honour added that “[i]n deciding whether the reasonable person in the position of [the applicant] would have realised the act was dangerous, you can take into account any awareness or evidence of his awareness and knowledge of the circumstances surrounding that act.”

4. [36]

   His Honour then directed the jury on the elements of the offences under s 25A(1) and (2), including a requirement to be satisfied beyond reasonable doubt that the applicant assaulted Mr Freeman by “deliberately hitting him with some part of his body or with an object held by him, in this case a knife”. In doing so his Honour told the jury, “you don’t even get to consider these offences if you form the view that [the applicant] did not deliberately stab Mr Freeman” (emphasis added). His Honour reminded the jury that the Crown’s submission was that the applicant “was under the influence of alcohol and made a decision to stab Mr Freeman”.

5. [37]

   After this the trial judge summarised the parties’ respective cases. His Honour directed the jury that if they believed the applicant’s evidence or thought “it might be true” they had to acquit the applicant, but if they rejected the evidence, they had to put it aside and consider whether the Crown had nevertheless proven his guilt beyond reasonable doubt (i.e. a Liberato direction; Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66). His Honour told the jury that it should exercise caution before convicting the applicant because the Crown case depended on the reliability of a single witness, being Adam Marshall. His Honour directed them that, unless they were satisfied beyond reasonable doubt that Mr Marshall was “both an honest and accurate witness in the account he has given”, they could not find the applicant guilty of any of the offences (i.e. a Murray direction: R v Murray (1987) 11 NSWLR 12).

6. [38]

   At the end of 17 November 2020, the jury was invited to retire and consider their verdict. However, at the request of counsel, his Honour gave them further directions the following morning on 18 November 2020. Later that day, a jury note requested, amongst other things, that his Honour clarify the elements of murder. His Honour repeated the elements of murder in terms consistent with what is set out above (at [33]). The note also requested that his Honour explain the “[d]ifference between manslaughter and assault occasioning death”. In response, his Honour told the jury:

7. [39]

   This explanation was the subject of criticism on appeal. It was contended that in describing what makes an act dangerous, his Honour gave two supposedly contrasting examples which were only distinguished by the outcome of the accused’s act rather than the inherently dangerous quality of the accused’s act itself. It was also noted that the explanation omitted to state that a reasonable person in these circumstances would not be intoxicated as the applicant undoubtedly was in this case.

8. [40]

   The jury then retired and deliberated for the remainder of the day. On the following day, 19 November 2020, the jury returned a verdict of “not guilty of murder but guilty of assault occasioning death while intoxicated”. As noted, it is not in dispute that this was effectively an acquittal on manslaughter.

The Sentencing Judgment

1. [41]

   In light of the manner in which the jury was directed, the verdict of guilty for an offence under s 25A(2) rendered the sentencing judge’s task of finding facts on sentence difficult. The Crown contended that his Honour should sentence the applicant on the basis that he deliberately stabbed Mr Freeman twice but in circumstances where his actions were not dangerous as the force of the stabs themselves in combination with Mr Freeman’s movements could have been very little. His Honour did not accept that contention, but instead made the following findings which reflected the sentencing submissions made on behalf of the applicant:

2. [42]

   To a large degree these findings accord with the evidence given by the applicant during the trial.

Assault Occasioning Death

1. [43]

   Section 25A of the Crimes Act provides:

2. [44]

   As previously noted, s 25B(1) prescribes 8 years’ imprisonment as the minimum sentence and minimum non-parole period for an offence under s 25A(2).

3. [45]

   Sections 25A and 25B were introduced by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). In the Second Reading Speech, the then Premier said that the corresponding bill was introduced to “tackle alcohol- and drug-related crime and antisocial behaviour in the central business district precinct and across New South Wales” and contained “new measures to tackle drug- and alcohol-related violence”.

4. [46]

   Three matters of present significance should be noted about s 25A. First, s 25A(1)(a) applies in the circumstance where a “person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person” (emphasis added). It was not disputed before the trial judge, and was accepted in this Court, that deliberately stabbing someone with a knife constitutes an act of “intentionally hitting” someone “with an object held by the person”.

5. [47]

   Second, it is not an element of an offence under s 25A(1) or (2) that the relevant act of “hitting” someone either be “dangerous” or not “dangerous”.

6. [48]

   Third, there is scope for argument as to whether manslaughter by an unlawful and dangerous act or an offence under s 25A(2) is the more serious offence. Generally, an unlawful and dangerous act is likely to involve a higher level of criminality than “hitting” someone while intoxicated as the latter does not have any element of dangerousness. Against that, the range of non-parole periods for manslaughter by unlawful and dangerous act, especially following a plea of guilty, often extends below the minimum non-parole period of 8 years for an offence under s 25A(2) (see, for example, Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85; R v Songcuan (No 3) [2023] NSWSC 183; R v Rudolph [2023] NSWSC 181).

7. [49]

   However, this is a debate for a vacuum. Subsection 25A(7) mandates that on a trial for murder and manslaughter, such as this one, those offences must be considered (and rejected) by the jury before considering the guilt or innocence of an accused of an offence under s 25A(1) or (2). Thus, if a jury is satisfied beyond reasonable doubt that an unlawful act causing death was committed and comes to consider whether the accused is guilty of an offence under s 25A(1) (or (2)) then it will not have been satisfied that the relevant act was dangerous.

Ground 1: Unreasonable Verdict

1. [50]

   Ground 1 of the notice of appeal contends that the jury’s verdict was unreasonable “as it was based upon the act of [the applicant] causing Mr Freeman’s death not being dangerous”.

2. [51]

   The applicant submitted that the verdict was unreasonable because the acquittals on murder and manslaughter were inconsistent with the conviction on s 25A(2). The submissions contended that the verdicts of not guilty to manslaughter and guilty to an offence under s 25A(2) could not be reconciled in the manner undertaken by the trial judge in the sentencing judgment. Contrary to the applicant’s sentencing submissions to the trial judge, it was submitted that his Honour’s findings were fundamentally inconsistent with the manner in which his Honour directed the jury and evidence at the trial. Instead, consistent with the trial judge’s directions, it was submitted that the jury’s verdict was explicable on the basis that it rejected even the possibility that the applicant’s version was true; accepted Adam Marshall’s version of events; was satisfied that the applicant deliberately stabbed Mr Freeman (causing wound A which, in turn, caused his death); was satisfied that the stabbing was not undertaken in self-defence; and that the applicant was intoxicated. The applicant additionally submitted that the verdict meant the jury was not satisfied that he intended to kill or inflict grievous bodily harm and:

3. [52]

   The applicant’s submissions further contended that the act of “deliberately stabbing Mr Freeman to the abdomen causing wound A… was inherently dangerous” and “patently carried with it an appreciable risk of serious injury” which a reasonable person in the applicant’s position must have realised. The submissions contended that “[i]t was not reasonable (nor rational nor logical) for the jury to notionally acquit [the applicant] of manslaughter but find him guilty of assault causing death when intoxicated” and that the verdicts revealed a compromise on the part of the jury (citing Mackenzie at 366 and 368). The submissions urged this Court to intervene by “carrying forward the logic of acquittal of murder and notional acquittal on manslaughter, and enter a verdict of acquittal of assault causing death when intoxicated” (citing MacKenzie at 368).

4. [53]

   In addressing this ground, two matters should be noted at the outset. First, I accept so much of these submissions that rejects the trial judge’s findings of fact on sentence as a means of explaining the jury’s verdicts. I also accept so much of this submission that contends that the jury accepted that the applicant deliberately (and unlawfully) stabbed Mr Freeman in a manner that caused wound A but were not satisfied that his actions were dangerous. The directions given to the jury only permitted it to find the applicant guilty on the basis that Mr Freeman was deliberately stabbed. That was how the parties conducted their case and addressed the jury. The question posed by the jury confirms that it focussed on the element of dangerousness to distinguish between manslaughter and an offence under s 25A(2).

5. [54]

   However, this conclusion only highlights the contradiction between the applicant’s analysis of the verdicts and submission that the jury should carry forward the logic of the acquittal on murder and manslaughter to acquit the applicant on the offence under s 25A(2). On the applicant’s analysis, which in this respect I agree with, the “logic of the acquittal” on murder was a lack of satisfaction that the applicant had an intention to inflict death or grievous bodily harm and the “logic of the acquittal” on manslaughter was a lack of satisfaction that the applicant’s act was dangerous. If that “logic” is carried forward it could not lead an acquittal for an offence under s 25A(2). This accords with common sense because, if the jury was unanimously satisfied beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman, which the applicant submits, it would be an affront to justice to enter an acquittal on an offence under s 25A(2), although the question of a retrial may still loom. As explained below, this is consistent with the authorities concerning inconsistent verdicts.

6. [55]

   Second, I do not accept so much of the applicant’s submissions that contended that the trial judge’s directions and jury’s verdicts meant it accepted each and every element of Adam Marshall’s description of the manner in which the applicant stabbed Mr Freeman. Mr Marshall described a quick and traumatic incident in which Mr Freeman attempted to resist. The other witnesses also described such a confrontation. Mr Marshall was clearly wrong in his recollection of where the stab wounds were inflicted.

7. [56]

   It is true that a Murray direction was given by the trial judge in respect of Mr Marshall’s evidence. While that appears to have been generous to the applicant, it does not mean that the overall effect of Mr Marshall’s evidence is more incriminating for the applicant than it actually was. His evidence carried with it some necessary degree of uncertainty arising from the quick escalation of a confrontation which he joined and his consumption of alcohol and marijuana. His evidence in relation to wound A (extracted above at [15]) confirms that the degree of penetration arose from Mr Freeman turning around. As submitted by the Crown in this Court, it was open to the jury to treat the relevant “act” of stabbing as a deliberate but small penetration of Mr Freeman’s skin which was exacerbated by his movements.

8. [57]

   Most cases before this Court which involve a complaint of inconsistent verdicts concern different verdicts on multiple count indictments relating to separate acts and not alternative counts, such as in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (“MFA”). However, like this case, in Mackenzie the High Court considered a complaint of inconsistency between an acquittal and a verdict of guilty on alternative counts. The appellant in Mackenzie was charged with two counts of perjury contrary to s 327 of the Crimes Act and two counts of perjury with intent to procure a conviction or an acquittal contrary to s 328 of the Crimes Act. The appellant was a solicitor who had given evidence at his client’s criminal trial. Thus, if he had perjured himself, he was likely to be cognisant of its potential consequences for his client. The particulars to the indictment identified two alleged false statements each of which founded a count under ss 327 and 328. The appellant was found guilty of the offences under s 327 and not guilty of the offences under s 328. The High Court unanimously rejected a complaint that the verdicts were unreasonable by reason of the inconsistency between the guilty verdicts and acquittals but ordered a retrial on a different basis.

9. [58]

   In Mackenzie, Gaudron, Gummow and Kirby JJ noted that, although jury verdicts are ordinarily inscrutable, sometimes by reason of the verdict and other matters “there is placed on the public record an insight into the jury’s thinking” (at 365). In this case, the evidence, the summing up, the jury verdicts and the jury note exposed the “jury’s thinking” about manslaughter quite clearly, being a lack of satisfaction that the applicant’s stabbing of Mr Freeman was “dangerous”.

10. [59]

    In Mackenzie, their Honours noted the distinction between legal or technical inconsistency and factual consistency, with the test for the latter being one of “logic and reasonableness” (at 366). However, their Honours added that respect for the jury’s function has “[n]evertheless” resulted in a reluctance to accede to contentions that verdicts are inconsistent (at 367). Their Honours continued (ibid):

11. [60]

    In respect of the jury’s approach of taking a “merciful” view of the facts, their Honours cited with approval a passage from the judgment of King CJ in Kirkman at 593, which included the statement:

12. [61]

    However, the plurality in Mackenzie also recognised a “residue” of cases where the jury’s verdict represented an “affront” to logic and common sense and “suggests a compromise of the performance of the jury’s duty”, “confusion in the minds of the jury”, “uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law” (at 368). Nevertheless, their Honours observed that “[i]t is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside” (ibid).

13. [62]

    The outcome in Mackenzie confirms the relatively high bar that must be overcome before a conviction will be set side in these circumstances. Their Honours described the differentiation between the jury’s verdicts in that case as a “little difficult to understand” and involving “an element of factual inconsistency” (at 369). Nevertheless, their Honours concluded that that the verdicts were not “so repugnant and irreconcilable that they… require intervention” (ibid). Their Honours identified various bases for that conclusion, including the following (at 370):

14. [63]

    This aspect of reconciling (apparent) inconsistent verdicts, that is, by recognising that juries may apply their “innate sense of fairness”, was reaffirmed in MFA at 631 (per McHugh, Gummow and Kirby JJ).

15. [64]

    During argument on the appeal, Senior Counsel for the applicant, Ms Avenell SC, submitted that so much of this discussion which concerns merciful verdicts had no application in the present context because the prescription of a minimum sentence for an offence under s 25A(2) by s 25B meant that a verdict on that count is not to be regarded as “merciful” compared to a conviction for manslaughter. I disagree. The discussion in Mackenzie concerned a jury adopting a “‘merciful’ view of the facts”. Such matters are to be assessed from the jury’s perspective and not from someone with any knowledge of s 25B, much less the current sentencing patterns for manslaughter. From the jury’s perspective, the offences under s 25A(2) and (1) were less serious offences. The jury could only consider them if the applicant was acquitted on murder and manslaughter and the jury was told that manslaughter required the more serious element of dangerousness attaching to the applicant’s act.

16. [65]

    In terms of the judgment in Mackenzie, this ground reduces to whether it can be concluded that the jury’s verdicts represent some form of compromise of their duty, uncertainty about the differentiation between the offences, lack of clear judicial direction on the one hand, or can be explained at least in part by the jury adopting a merciful view of whether the applicant’s conduct was dangerous on the other. An analysis of the verdicts, the summing up and the jury’s question clearly suggests that the jury accepted the applicant deliberately stabbed Mr Freeman to some degree, but was not satisfied beyond reasonable doubt that it was dangerous.

17. [66]

    More significantly, the jury’s verdicts are explicable by reference to the scope for debate, in light of Adam Marshall and Dr Duflou’s evidence, about the degree of force applied by the applicant in stabbing Mr Freeman, the evaluative nature of an assessment of dangerousness and the jury concluding that a conviction for an offence under s 25A(2) was sufficient to meet the justice of the particular case (see Mackenzie at 369−370; Kirkman at 593). I do not discern that the verdict was the outcome of some form of compromise by the jury in accepting any of the Crown witnesses, the applicant’s case or any other matter bearing on his guilt on the offence under s 25A(2).

18. [67]

    The Courts should exercise caution before concluding that a jury’s verdicts are the result of compromise given that it involves the jury acting contrary to its duty (R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [136]; “TK”). The jury was seeking to perform its duty. In this case, the verdicts are not so “repugnant and reconcilable that they… require intervention” (Mackenzie at 369).

19. [68]

    Before concluding this ground, it is necessary to return to the matter noted at [52] concerning the applicant’s submission that the Court should carry forward the “logic” of the applicant’s acquittals on murder and manslaughter to enter an acquittal on the offence under s 25A(2). This submission has its origins in the following passage from Mackenzie (at 368):

20. [69]

    In TK, Simpson J (as her Honour then was and with whom McClellan CJ at CL and Latham J agreed) comprehensively reviewed the authorities concerning inconsistent verdicts (at [133]). Having identified the possibility of so-called merciful verdicts as discussed in Mackenzie and reaffirmed in MFA, her Honour added (at [134]):

21. [70]

    This passage points to an instance where a conclusion that verdicts are inconsistent does not lead to an acquittal but a retrial. In this case, had I accepted that the jury’s verdict represented some form of compromise, it would have meant that the applicant received an acquittal for manslaughter to which he was not entitled. Nothing can be done to reverse that acquittal but it would not mean the applicant is entitled to an acquittal on the offence under s 25A(2). Instead, I would have ordered a retrial.

22. [71]

    Nevertheless, it follows that I consider ground 1 should be rejected. I would grant leave to raise the ground but dismiss the ground.

Grounds 2 and 3: Leaving Offences under s 25A to the Jury

1. [72]

   Grounds 2 and 3 of the notice of appeal can be dealt with together. These grounds provide as follows:

2. [73]

   The complaint made by both of these grounds is that the trial judge erred in leaving to the jury the offences under s 25A(2) and (1) in circumstances where, so it was contended, there was no “viable” case under those provisions if the applicant was acquitted of murder and manslaughter. This was said to be so because the only sensible basis for an acquittal on manslaughter was if the jury had not been satisfied beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman, a path of reasoning that would be fatal to proof of an offence under s 25A(2) or (1). If the jury was so satisfied, it was submitted that it inevitably followed that the act was dangerous and the applicant had to be convicted of manslaughter.

3. [74]

   The duties of a trial judge extend to directing the jury with respect to any alternative verdict that is “reasonably open” on the evidence, notwithstanding any attempt by an accused to disavow it for forensic reasons (see Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246 at [78]−[83], citing James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [31]−[32] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; “Basanovic”). The most common circumstance in which a consideration of that duty has arisen in this Court is where the trial judge has failed to put to the jury an alternative count and the convicted person contends that this failure meant their conviction on the principal count was occasioned by a miscarriage of justice (see Basanovic; R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255 at [34]; Mifsud v R [2009] NSWCCA 313 at [48]−[50]).

4. [75]

   However, the present context is different in that the applicant contends a miscarriage of justice was occasioned by the putting of an alternative count to the jury that was not “viable”. One form of miscarriage of justice that can be occasioned by a trial judge putting an alternative count to the jury is that in some circumstances it can cause procedural unfairness to an accused, such as raising additional issues that the accused was not given a proper opportunity to address (Chand v R [2011] NSWCCA 53 at [61]−[65]; R v Lykouras [2005] NSWCCA 8 at [22]−[24]). Leaving that aside, I will assume, without deciding, that a miscarriage of justice could be occasioned by a jury being instructed on an alternative charge that was not “viable” on the evidence. Even so, an assessment of what is “viable” in this context would have to embrace the proposition that it is the sole function of the jury, not the trial judge, to decide evaluative matters such as whether the act of an accused was “dangerous”. This was recognised by the trial judge and all the counsel who appeared at the trial. In the exchanges with the trial judge and their addresses, counsel clearly acknowledged that the jury might not be satisfied beyond reasonable doubt that some form of deliberate stabbing by the applicant was dangerous. Having regard to the jury’s function and the scope for debate about the extent of force applied by the applicant in “stabbing” Mr Freeman that arose from Adam Marshall and Dr Duflou’s evidence, there was a “viable” case under s 25A(2) or (1) to put to the jury.

5. [76]

   As noted, no issue was raised on behalf of the applicant before the trial judge about whether the offences under s 25A(2) or (1) could be left to the jury.

6. [77]

   I would refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise these grounds.

Proposed Orders

1. [78]

   I propose the following orders:

2. [79]

   BUTTON J: I agree with the Chief Judge at Common Law.

3. [80]

   McNAUGHTON J: I agree with Beech-Jones CJ at CL.