Smith v R

1. [1]

   ADAMSON JA: Kevin Smith (the applicant) seeks leave to appeal against his conviction for the murder of Daniel Pettersson (the deceased) at Jesmond on 6 January 2022. The sole ground of appeal is that the verdict of guilty of murder is unreasonable as the Crown did not prove beyond reasonable doubt that the applicant did not believe that his conduct was necessary to defend himself. If this ground of appeal is made out, the applicant seeks an order that his conviction be set aside; that a verdict of acquittal be directed; and that there be an order for a re-trial limited to the alternative statutory count of manslaughter.

2. [2]

   Because the applicant was tried by jury, the question for this Court is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant did not believe that his conduct was necessary to defend himself: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M). For the reasons which follow, and having regard to all the evidence, I am persuaded that it was not open to the jury to be so satisfied. The question of the appropriate orders will be addressed at the conclusion of the evidence.

3. [3]

   Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as the ground does not involve a question of law alone.

4. [4]

   An unreasonable verdict ground generally requires this Court to consider all of the evidence which was before the jury.

The evidence at the trial

1. [5]

   In the trial in the Court below, there was extensive evidence (much of it in the form of a statement of agreed facts tendered pursuant to s 193 of the Evidence Act 1995 (NSW)) tendered in the Crown case as to the reason for the history of animosity between the applicant and the deceased. It is not necessary to set out this evidence in detail. The following summary is sufficient for present purposes.

2. [6]

   The applicant and KE were in an intimate “on and off” relationship from 2016 until 6 January 2022. When B was born to KE in about mid-2020, the applicant thought that he was B’s father and continued to believe this until a paternity test carried out after B’s first birthday confirmed that the deceased was B’s father.

3. [7]

   In October 2021, B was removed from KE’s care and placed in the care of the deceased, whose father came to help the deceased look after B. In November 2021, KE brought proceedings in the Family Court to recover care of B.

4. [8]

   On 23 December 2021, the Family Court awarded custody of B to KE on condition that she reside with RE, her father, in his residence at Hamilton (the Hamilton house). The terms of the Family Court orders permitted the deceased to have access to B at the Hamilton house on Sundays for a period of five hours on condition that he was accompanied by his father. However, KE sometimes allowed the deceased to see B at the Jesmond house where KE had resided before moving in with her father under the Court orders. KE and the deceased communicated with each other regularly, including by phone although from time to time KE would block the deceased’s calls before unblocking them again.

5. [9]

   The deceased, who had been with his parents in Queensland, returned to Newcastle on 28 December 2021. On 29 December 2021, he stayed in the Hamilton house and spent time with B. On 31 December 2021, the deceased and KE had a fight following which the deceased sent messages to KE threatening self-harm. On 1 January 2022, police located the deceased who was taken to hospital for psychiatric evaluation. After about six hours, the deceased returned home. On 2 or 3 January 2022, the deceased was permitted to see B.

6. [10]

   The following were the agreed facts concerning the threats made by the deceased and the applicant:

7. [11]

   As at 6 January 2022, KE was about three months pregnant with another child, of which the deceased was also the father.

8. [12]

   The events of 6 January 2022 were also the subject of agreed facts, as follows:

9. [13]

   The prosecution witnesses included KE, RE and Wade Hughson, who at that time shared accommodation with the deceased. The applicant exercised his right not to give evidence. What follows is a summary, in chronological order, of relevant oral evidence, together with references to other evidence (such as photographs and plans).

10. [14]

    The layout of the Jesmond house is depicted in a floor plan and in various photographs. The front entrance of the Jesmond house was on one side. Steps led up from the driveway to a front door, which was wooden and did not permit those on either side to see through it when it was closed. When entering the house from the front door, the living room is on the left and led through to a galley kitchen, which was in a U-shaped configuration. It had a sink and dishwasher on the left side and a stove at the end, with a fridge on the right, opposite the sink.

11. [15]

    There was an external door along the wall between the living room and the kitchen (and no door between these rooms). The solid wooden door from the kitchen to the outside opened inwards and had two barrel locks: one which could be fastened to the floor below and the other to the door jamb above the door. There was also a screen door between the wooden door and the outside area which opened outwards. The outdoor area outside this external door was fenced in (apparently to keep KE’s dogs in).

12. [16]

    At some time around New Year’s Eve, the deceased arrived at the Hamilton house and spoke to RE, demanding to see B. RE reminded him that he was only permitted to see B in accordance with the court orders. The deceased responded, in a tone which RE described as “slightly stressed” but not aggressive, “[B]’s my child and I want to see him.” According to RE, “[the deceased] ramble[d] on about why the court orders are wrong, why the Court is wrong …”. RE said that, ultimately, he told the deceased, “You have to leave now. We’re going nowhere”. The deceased then left.

13. [17]

    According to RE, at about 11.30am on 6 January 2022, he received two missed calls. At about midday, he dropped KE and B (who was then 17 months old) at the Jesmond house because KE wanted to do some washing and retrieve some clothes. According to KE, when she arrived at the Jesmond house with B, the applicant, who had been staying there, was present.

14. [18]

    As set out above, at 12.38pm, RE sent KE a message about “three” calls.

15. [19]

    At about 2pm, RE received a call, which he described as a “no number call”. The caller asked to speak to KE. RE thought that he recognised the voice as the deceased but the caller identified himself as the applicant. By this time, it was plain to RE that the caller was the deceased. RE said, “No, Daniel, you cannot speak to [K].” The deceased said: “I want to see [B], [B]’s my child.” RE responded that the court order would need to be changed before he could allow the deceased to have access to B (in circumstances other than those provided for by the court order).

16. [20]

    RE’s evidence about this exchange also included the following:

17. [21]

    RE described the deceased as “agitated”. Ultimately, the call ended when RE hung up. RE then received another call, which he did not answer and, after ten minutes, a further call. RE contrasted the deceased’s tone towards him around New Year’s Eve (see above), which was not aggressive towards him, with the deceased’s conduct on 6 January 2022.

18. [22]

    This exchange prompted RE to send two further messages to KE at 2.30pm (set out above), warning her that the deceased might come “there” (the Jesmond house). In a further message sent that afternoon, RE asked KE what time she wanted him to pick her up, to which she responded “at 4pm”.

19. [23]

    As at 6 January 2022, Mr Hughson was living with his girlfriend and the deceased at a residence in Wallsend (the Wallsend house). He had known KE since his youth and knew that she and the deceased had been in a relationship. However, Mr Hughson had never met the applicant.

20. [24]

    At about 2.40pm, the deceased returned to the Wallsend house. He asked Mr Hughson if he could borrow his phone as he had been trying to contact KE, who had blocked him on her phone. The deceased could not get through. Mr Hughson left on his bicycle to go to the Wallsend shops. He took his phone, telling the deceased that if KE called, he would ring him.

21. [25]

    When Mr Hughson arrived at the Wallsend shops, he bought a “scratchy” and “ended up going in and was playing the pokies”.

22. [26]

    Mr Hughson was playing the pokies for about half an hour when the deceased rang him. Because Mr Hughson did not know who was calling him, he did not answer.

23. [27]

    At 3.19pm, the deceased drove in his utility to the Jesmond house. He parked the vehicle and walked towards the property. About a minute and a half later, he returned to his vehicle and drove away (recorded on dashcam footage, tendered as an exhibit).

24. [28]

    The calls to Mr Hughson’s phone persisted. Eventually, he answered and learned that it was the deceased who was calling. The deceased told Mr Hughson that he wanted to come and collect him.

25. [29]

    When the deceased arrived in his utility to pick up Mr Hughson, he put Mr Hughson’s bicycle in the back. When Mr Hughson came out to the street, the deceased told him that he wanted to go and see KE. On the way to the Jesmond house, the deceased asked Mr Hughson if he could use his cigarette lighter. Mr Hughson, who knew that the deceased rarely smoked, appreciated that he wanted the lighter to hold in his hand so that if he were involved in a fight, his hand would not expand.

26. [30]

    On the way to the Jesmond house, Mr Hughson suggested that they go to Hungry Jack’s (which was nearby) but the deceased “didn’t listen to [him]” and “just kept going up and doing a uey at the end of the street”. Mr Hughson agreed in cross-examination that he suggested going to Hungry Jack’s “to distract [the deceased] from going [to the Jesmond house]”. Mr Hughson anticipated that there would be a fight between the deceased and the applicant because he knew that the deceased was “agitated” about KE and the applicant “being in the house together”.

27. [31]

    The deceased and Mr Hughson arrived at the Jesmond house at 3.34pm. Mr Hughson remained at the front of the car, rolling a cigarette, while the deceased approached the front door.

28. [32]

    In cross-examination, Mr Hughson agreed that the deceased was “yelling out” words which were “something like” “[K], [K], let me fucking in”; “[K], let me see my fucking son”; and “[w]ho’s in there?”. Mr Hughson agreed that the deceased was being “very aggressive”.

29. [33]

    According to KE, she heard the deceased’s voice at the front door (which was on the side of the Jesmond house) and opened it. She said further:

30. [34]

    KE described the deceased as “a bit agitated” and “[c]ranky”. While the deceased was inside the house, she stayed at the front door with B. KE said she did not hear what the men said to each other. However, in cross-examination, KE said that the deceased was telling the applicant to come outside and fight.

31. [35]

    The deceased came back outside the front entrance into a position where KE was between him and the front entrance. KE said to him, “Let’s just go. Don’t do this now. Come on, let’s just go. Don’t do this in front of [B]. My dad will be back in a minute”. The deceased responded, “I don’t care.” KE had her hand on the deceased’s chest and “was trying to calm him down”. KE agreed that “[the deceased] was becoming more and more worked up as he stood … at the front door”.

32. [36]

    According to Mr Hughson, the deceased yelled out to him that “someone was at the house”. Mr Hughson could not see the deceased at this stage because the front door was at the side and the car was parked in such a way that, from his position in front of the car, the view was obscured. In cross-examination, Mr Hughson, whose nickname was “Whippet”, agreed that the deceased called out, “Whippet, Whippet, he’s got a knife”.

33. [37]

    When Mr Hughson approached the front door, he saw that KE was between the applicant and the deceased in the area of the doorway. The deceased was, at that time, outside of the house. According to Mr Hughson:

34. [38]

    Mr Hughson agreed that, at that time, the applicant was “one or 2 metres behind [K]”. However, Mr Hughson maintained that the applicant “was striking Daniel”. Mr Hughson said that KE and the deceased were both yelling but that the applicant did not say anything.

35. [39]

    According to KE, Mr Hughson, who had come with the deceased, was standing behind the deceased at the bottom of the stairs that led to the front door. KE heard him say, “Put the blade away, Kevin.” KE then turned around and saw that the applicant was standing behind her, holding a black hunting knife with a serrated edge and a “point hook” at the end of it in his right hand. She estimated that the knife was about 19cm long. KE said to the applicant, “What are you doing? Put it away”. According to KE, the applicant was just “holding” the knife, “[p]rotecting himself … [t]rying to intimidate … [s]care Danny away”.

36. [40]

    Mr Hughson denied that he had told the applicant to put the knife down. However, he agreed that he saw the applicant “lowering the knife and standing there”.

37. [41]

    The applicant put the knife into “a little case with a button clip over the top of it” and “clipped it shut to hold it in there”. KE recognised the knife as the applicant’s as she had seen it previously in the house.

38. [42]

    KE’s evidence was:

39. [43]

    In cross-examination, KE said: “As soon as Kevin put the knife into the case thing, then that’s when he lunged at him.” She also said, “All I remember is as soon as he put that button on it, Danny’s gone and pushed me into the wall and just lunged at him”.

40. [44]

    When it was put to KE that she was stopping the deceased from entering the house, she said:

41. [45]

    According to KE, the deceased “just went to grab at [the applicant, who] just … stepped back into the hallway and … backed away from him and they just went up around the corner.” KE “just grabbed [B] and started freaking out”. She said that they went along the hallway towards the kitchen area. According to KE, “[the applicant] was walking backwards and [the deceased] was just trying to grab him”.

42. [46]

    Mr Hughson agreed that he saw the deceased push past KE and B and run in the direction of the applicant. This was the last relevant observation which Mr Hughson made before the stabbing.

43. [47]

    KE said that she gave B to Mr Hughson and a neighbour and went “back inside to try and resolve the situation and stop them from fighting”. According to Mr Hughson, he took B from KE and saw her go back inside the house.

44. [48]

    KE went to the entrance to the kitchen and saw:

45. [49]

    KE observed that the men were “just wrestling”, that “[the applicant’s] arms were waving round” and that the deceased was “trying to get the knife”.

46. [50]

    KE’s dog, a Mastiff cross Great Dane, was also in the kitchen “attacking the both of them” by “biting at them and jumping on them”. She grabbed the dog because she “thought he was going to get hurt”. Her evidence was:

47. [51]

    Photos tendered in the Crown case showed that the deceased’s blood was on the floor from the end of the kitchen area near the stove and left a trail along the path taken by the deceased as he left the Jesmond house through the front door.

48. [52]

    After KE had shut the door to the bedroom and put the latch on, she heard the deceased say her name from the living room. She described his appearance:

49. [53]

    KE said that she tried to help the deceased out to the street but as she was pregnant and he weighed, in her estimation, 130kgs, it was hard to do so.

50. [54]

    Mr Hughson saw the deceased come out of the house, bleeding. He went to help him. Mr Hughson also saw the applicant come out of the house. According to Mr Hughson, the applicant asked him, “did [he] want it, as well”. Mr Hughson agreed that his statement to police made on 6 January 2022 recorded that the applicant had said to him, “Do you want to have a go, too?” but Mr Hughson no longer recalled hearing those words being said.

51. [55]

    Mr Hughson said, “oh, there’s enough people laying on the ground, I don’t want anyone else laying on the ground, too.” He also said to the applicant, “if I was you, I would - you’re in a bit of - bit of strife, I’d get the fuck out of here”.

52. [56]

    At 4.20pm, the deceased was declared dead outside the Jesmond house. A subsequent autopsy found that the deceased died as a direct result of a stab wound to the front upper side of his chest. There were no defence injuries present on the applicant’s body.

Consideration

1. [57]

   The applicable law is that “[a] person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence”: s 418(1) of the Crimes Act 1900 (NSW). A person “carries out conduct in self-defence if and only if the person believes the conduct is necessary … to defend himself or herself …”: s 418(2)(a). In criminal proceedings, the prosecution bears the onus of proving beyond reasonable doubt that the person was not acting in self-defence: s 419.

2. [58]

   Section 421 provides that where a person’s conduct causes the death of another and that conduct is not a reasonable response in the circumstances perceived by that person but the person believes that the conduct is necessary to defend himself or herself, the person is to be found guilty of manslaughter. This type of manslaughter falls into the category of “voluntary manslaughter” which is commonly referred to as manslaughter by excessive self-defence: Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [50] (Bathurst CJ, Simpson and Adamson JJ).

3. [59]

   Thus, in the present case, the jury’s verdict of guilty to the murder charge carries with it the necessary implication that the jury was satisfied beyond reasonable doubt that the applicant did not believe that it was necessary to stab the deceased in order to defend himself.

4. [60]

   Mr Quilter, who appeared for the applicant, submitted that it was not open to the jury, on all of the evidence, to be satisfied of this element beyond reasonable doubt.

5. [61]

   The Crown submitted that it was open to the jury to reach the requisite state of satisfaction of that element on the basis of the following:

   1. (1)

      the applicant was armed with a hunting knife whereas the deceased was unarmed;

   2. (2)

      the applicant was not “cornered” in the kitchen as, when last seen by KE, he was in front of the dishwasher, which was on the same side of the kitchen as the external door;

   3. (3)

      as the applicant lived in the Jesmond house, it was open to the jury to infer that he knew of the configuration of the wooden and screen doors, which would have permitted him to make his escape from the deceased through that exit;

   4. (4)

      while the deceased was aggressive on arrival, the applicant became the true aggressor when he produced the knife at the front door;

   5. (5)

      the production of the knife and the applicant’s possession of the knife transformed what the deceased had anticipated would be a fist fight into something more serious;

   6. (6)

      the applicant’s comment to Mr Hughson on leaving the Jesmond house was “plainly consistent with the applicant having an attacking rather than a defensive state of mind” (Crown submissions, para 83); and

   7. (7)

      by trying to grab the knife from the applicant, the deceased was attempting to disarm him.

6. [62]

   The Crown also submitted that paragraph 32b of the agreed facts ought be construed to mean that the deceased had not directly threatened the applicant but that he had told KE (and not the applicant) that if the applicant was at the Jesmond house, it would be “on”. This construction was relied on in support of a submission that the applicant was the only one who had made direct threats to the other man.

7. [63]

   The task for this Court is to assess whether the whole of the evidence was sufficient to eliminate any reasonable doubt that the applicant was guilty of murder: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie) at [7]-[8], citing M at 492-493. Having regard to the way in which the sole ground of appeal is framed, this Court is required to assess whether it was open to the jury to exclude the possibility that the applicant believed that he needed to stab the deceased in order to defend himself. Because the case was a circumstantial one (since there was no eye-witness present at the time of the stabbing), this Court is obliged “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”: Dansie at [12], citing Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]. Each member of the Court must carry out an independent assessment: Dansie at [38].

8. [64]

   Because the jury is the body entrusted with the primary responsibility for determining guilt or innocence, this Court must make allowance for the jury’s advantage in seeing and hearing the witnesses give evidence. Thus, if any doubt which this Court may experience is capable of being resolved by that advantage, this Court may conclude that the verdict is not unreasonable: Dansie at [9], citing M at 494-495. This latter factor is accommodated in the present case by Mr Quilter’s acceptance that this Court ought take the evidence in the prosecution case at its highest when making the assessment (which imports the assumption that it was open to the jury to accept that evidence).

9. [65]

   I have summarised the relevant evidence above. While the evidence of what occurred on both occasions when the deceased entered the Jesmond house is relatively detailed, the evidence of what occurred in the kitchen is sparse since KE had absented herself from the scene after she had removed her dog from the location. Thus, the assessment of the evidence to determine whether the relevant element had been established beyond reasonable doubt (which required the Crown to exclude all other reasonable hypotheses) required inferences to be drawn from the circumstances established by the evidence.

10. [66]

    There was a lengthy history of animosity between the applicant and the deceased, which included mutual threats. I reject the submission made by the Crown that paragraph 32 of the agreed facts ought be construed to indicate that the only threats made by the deceased in respect of the applicant were made to KE. This does not accord with the plain meaning of the words and is inconsistent with the wording of paragraph 33 of the agreed facts.

11. [67]

    The deceased was considerably larger than the applicant. For the purposes of his submissions, Mr Quilter accepted that the deceased weighed 118kg (as opposed to the figure of 130kg, which was KE’s estimate) and was 6 foot 2 inches, or 189cm tall. The applicant was shorter and slighter.

12. [68]

    The applicant was staying at the Jesmond house when the incident occurred. The deceased arrived at the house without warning or invitation. From the time of his arrival he was yelling and acting aggressively. His demands to see B were, to his knowledge, inconsistent with the orders which had just been made by the Family Court, of which he had been reminded that very morning by RE. The deceased urged the applicant to come out and fight, a challenge which Mr Hughson appreciated would be made when he tried to deflect the deceased into Hungry Jack’s on their way to the Jesmond house.

13. [69]

    When the applicant produced his hunting knife at the door, the deceased did not evince any sign of fear. Nor did he retreat. Rather, he remained belligerent and sought to reach over KE to grab the applicant, who was then standing at least one metre behind KE. The applicant, from his position facing outwards behind KE, could see Mr Hughson coming up behind the deceased, and was in a position to have heard the deceased summon him to that location by yelling out that the applicant had a knife. As Mr Hughson had never met the applicant, it was open to the jury to infer that the applicant had not met Mr Hughson and was therefore not in a position to know more than that Mr Hughson had accompanied the deceased to the location and was prepared to come to the front door when the deceased summoned him.

14. [70]

    As soon as the applicant was asked by either KE or Mr Hughson, or both of them, to put away the knife, he did so. He clipped the fastening to confine the blade within its housing. This action immediately precipitated an attack by the deceased, who pushed KE, who was holding B, away and lunged at the applicant. The applicant retreated into the house, walking backwards, keeping the deceased in his sights. The deceased continued to pursue him through the house into the kitchen. At some point, the applicant was able to release the knife from its housing.

15. [71]

    When KE last saw the two men, the applicant was backed against the dishwasher and the deceased was opposite him in a confined space in the kitchen. The deceased was trying to get the knife from the applicant.

16. [72]

    I do not consider that it was reasonably open to the jury to infer that the applicant could have avoided any risk to his person by going out the external door from the kitchen. First, KE’s evidence was that he was in front of the dishwasher “right near the corner”, which was a considerable distance from the door (since both the sink itself and a large terrarium were in between the bench under which the dishwasher was located and the end of the bench where the gap for the external door was located). Second, the applicant’s experience was that, as soon as he put away the knife at the front door, the deceased exploited his advantage by lunging at him and entering the house. From the applicant’s perspective, any momentary lapse of attention (as would be required to get from in front of the dishwasher to the door and open both the wooden door and the screen door) would be exploited by the deceased. Third, the deceased was attempting to grab the knife at that time. By attempting to disarm the applicant, the deceased would have armed himself, thus putting the applicant into mortal danger if the deceased decided to use the knife against the applicant.

17. [73]

    In these circumstances, I am persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant did not believe that it was necessary to stab the deceased in order to defend himself.

18. [74]

    It follows that the verdict of guilty of murder was unreasonable. It ought be set aside and a re-trial limited to a charge of manslaughter ordered. It was ultimately accepted by the Crown that these were the appropriate orders if the Court considered the verdict of guilty of murder was unreasonable.

The appropriate orders

1. [75]

   In addition to orders setting aside the conviction for murder and for a re-trial, Mr Quilter sought that a verdict of acquittal on the murder charge also be directed. The Crown opposed that order, submitting that the Court ought not so direct since this might have the effect, on the basis of autrefois acquit, of preventing the Crown from prosecuting the applicant for manslaughter.

2. [76]

   Section 5 of the Criminal Appeal Act confers a right of appeal against conviction on a question of law alone (s 5(1)(a)) or otherwise, if leave is granted.

3. [77]

   This Court’s power to make the orders sought by the applicant derives from ss 6 and 8(1) of the Criminal Appeal Act. Section 6 relevantly provides:

4. [78]

   Section 7 confers powers on this Court in “special cases”. The Crown did not press its original submission that this Court ought, pursuant to s 7(2) of the Criminal Appeal Act, substitute a verdict of guilty of manslaughter.

5. [79]

   Section 8 of the Criminal Appeal Act relevantly provides:

6. [80]

   The entry of a verdict of acquittal under s 6 and the ordering of a new trial under s 8 are, in respect of a single charge, true alternatives. Thus, in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43, the High Court (Gaudron, McHugh, Gummow and Hayne JJ) said at [104]:

7. [81]

   A judgment of acquittal will usually be appropriate where the Court has found that the verdict of guilty was unreasonable: that is, that the evidence was insufficient to support a conviction: R v Hasenkamp (Court of Criminal Appeal (NSW), Simpson J, 12 December 1997, unrep). However, an acquittal has been ordered in other circumstances, including where a sentence has been fully served: see the summary of authorities in R v Pedrana [2001] NSWCCA 66; (2001) 123 A Crim R 1 (Pedrana) at [69]-[77] (Ipp AJA, Wood CJ at CL agreeing; Simpson J contra, on the question whether an acquittal ought be ordered in those circumstances). An acquittal has also been ordered where a fair trial is no longer possible: see the discussion of the authorities in Mokbel v Director of Public Prosecutions (Cth) [2021] VSCA 94; (2021) 289 A Crim R 1 at [37]-[54] (Beach and Osborn JJA) (where the majority refused to order an acquittal and ordered a re-trial in circumstances where the Director of Public Prosecutions indicated that she did not propose to prosecute the appellant again).

8. [82]

   The statement in Pedrana that the Court (in respect of each charge) must either order an acquittal or order a new trial was approved by the High Court in The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 (A2) at [82] (Kiefel CJ and Keane J):

9. [83]

   These decisions do not constrain the Court’s powers under s 8 to order a new trial of offences other than those which have been the subject of an order for acquittal under s 6(2).

10. [84]

    Section 163 of the Criminal Procedure Act 1986 (NSW) provides:

11. [85]

    The question that arises in the present case is whether, if this Court were to direct a verdict of acquittal in respect of the murder charge, this would create a plea in bar, either by reference to the common law plea in bar of autrefois acquit or under s 163 of the Criminal Procedure Act.

12. [86]

    Before addressing the authorities to which this Court was referred, I propose to address the question of statutory construction which arises, having regard to the terms of s 163 of the Criminal Procedure Act on the one hand and ss 6 and 8 of the Criminal Appeal Act on the other.

13. [87]

    Sections 6 and 8 of the Criminal Appeal Act can interact in different ways. This Court may quash a conviction and order a re-trial of the same offence (where the verdict was not unreasonable but there is some other error giving rise to a miscarriage of justice); the Court may quash a conviction and direct an acquittal (such as in a case where the conviction was unreasonable or where, as in Pedrana, there are reasons why a new trial would not be in the interests of justice because the sentence had been served). It may quash a conviction, direct an acquittal of a more serious offence and order a re-trial on a less serious offence. While ss 6 and 8 are referred to as true alternatives in respect of individual charges, they do not operate in that way in respect of different charges, as these examples and the authorities addressed below illustrate.

14. [88]

    Read literally, s 163 of the Criminal Procedure Act is inconsistent with the combined effect of ss 6 and 8 of the Criminal Appeal Act. Pursuant to s 6, the Court is obliged to direct an acquittal on a charge where the jury’s verdict has been found to be unreasonable and is empowered by s 8 to order a new trial, implicitly, for an offence which may be open on the evidence (or substitute its own verdict under s 7 for such an alternative offence). However, such a new trial would be, on the construction of s 163 of the Criminal Procedure Act for which the Crown contended, prohibited.

15. [89]

    The Criminal Procedure Act and the Criminal Appeal Act are cognate pieces of legislation, which are designed to operate in a coherent way. Thus any apparent inconsistency which would result in one provision having to give way to the other is unlikely to have been objectively intended. These provisions ought be construed so as to give rise to a harmonious result.

16. [90]

    I consider that s 163 ought be limited to circumstances where an indictment has been finally dealt with and ought not be regarded as applicable in cases where this Court has adopted one of the courses open to it under ss 6 or 8 to direct an acquittal and order a re-trial. Were s 163 to apply in such a case, ss 6 and 8 would have little, if any, operation where a conviction for a more serious offence has been quashed, a verdict of acquittal entered and a re-trial ordered on a less serious offence.

17. [91]

    My preferred construction of s 163 accords with what McCallum CJ said at [44] in her Honour’s reasons (dissenting as to the result) in O’Connell v DPP (No 4) [2025] ACTCA 41 (O’Connell) (set out below). In O’Connell, the ACT Court of Appeal (Loukas-Karlsson and Taylor JJ, McCallum CJ dissenting) set aside a conviction for murder and substituted a verdict of guilty on the alternative offence of manslaughter, rather than ordering a re-trial (which McCallum CJ would have ordered).

18. [92]

    McCallum CJ said, at [44], when referring to s 163 of the Criminal Procedure Act (considered further below):

19. [93]

    Further, a broad construction of s 163 is at odds with the way in which ss 6, 7 and 8 of the Criminal Appeal Act operate: which is to confer power on this Court to provide a remedy for miscarriages of justice. This Court is obliged to prefer a construction which would promote the purpose of legislation to one which would not: s 33 of the Interpretation Act 1987 (NSW).

20. [94]

    In R v Quinn (1952) 53 SR (NSW) 21 (Quinn), the jury returned a verdict of not guilty in respect of the murder charge but was hung on whether the appellant was guilty or not guilty of manslaughter. Accordingly, the jury was discharged. When the appellant was retried for manslaughter, he attempted to raise a plea of autrefois acquit in bar on the basis that he had been acquitted of murder. The indictment for manslaughter was quashed by a Chairman of Quarter Sessions. The Attorney-General’s appeal to this Court, which was constituted by Street CJ, Owen and Herron JJ, was allowed and the order quashing the indictment set aside.

21. [95]

    Owen J (Street CJ agreeing) cited extensively from the standard texts about criminal pleadings and concluded at 25:

22. [96]

    Herron J, at 25, set out the following passage from R v Barron [1914] 2 KB 570 (Barron) in which Lord Reading CJ said, at 574:

23. [97]

    Herron J continued at 25-26:

24. [98]

    The principal basis of the Crown’s submission that this Court ought not direct an acquittal in respect of the charge of murder is a decision of this Court in R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54 (Murrell). In that case, this Court (Wood CJ at CL, Kirby J and Matthews AJ agreeing) held that the erroneous admission of a transcript of a conversation intercepted by a listening device had occasioned a miscarriage of justice and that the appellant had lost a real chance of acquittal as a consequence. Accordingly, the Court decided to allow the appeal and quash the conviction of the appellant for murder. The question arose whether, and on what terms, the Court ought order a re-trial. The Court determined that a rational jury, properly instructed, would have entertained a reasonable doubt as to the appellant’s guilt of murder but that it would be open to such a jury to be satisfied beyond reasonable doubt of the appellant’s guilt of either manslaughter or accessory after the fact to murder.

25. [99]

    This circumstance required the Court to consider whether it ought enter a verdict of acquittal in respect of a charge of murder and order a re-trial limited to manslaughter or accessory after the fact to murder or whether it ought quash the conviction of murder and order a re-trial, without specifying any limitation on the re-trial. In considering this question, the Court referred to s 125 of the Criminal Procedure Act (now s 163 of that Act, set out above), which was regarded, at [40], as confirming the common law position as stated in Barron at 574 (extracted above in the consideration of Quinn).

26. [100]

    Wood CJ at CL noted that the passage in Barron was cited in Quinn and said, by reference to Quinn, at [37]:

27. [101]

    After considering the various authorities, Wood CJ at CL concluded by saying:

28. [102]

    Thus, in Murrell, the Court ordered that the appeal be allowed, the conviction and sentence be quashed and that there be a new trial. No verdict of acquittal in respect of the murder charge was directed and there was no order that the new trial be limited to the charges of manslaughter or accessory after the fact to murder. As appears from [43] in Murrell, there was more than one potential remaining, alternative charge: manslaughter or accessory after the fact to murder. It is apparent from the terms of the reasons that the Court’s reluctance to enter a “general [verdict of] acquittal” was born of prudence, rather than principle, since Wood CJ at CL appreciated that the verdict of acquittal in Quinn was expressly limited to the murder charge and did not constitute a “general acquittal”. Further, although the Court in Murrell considered s 8 of the Criminal Appeal Act, it did not consider its relationship with the statutory predecessor of s 163 of the Criminal Procedure Act. Nor did it consider the effect of s 6 of the Criminal Appeal Act.

29. [103]

    Murrell is not binding on this Court as a matter of precedent since the Court expressly chose a prudent course in that case rather than deciding that another course would have had the adverse effect which was the subject of its caution.

30. [104]

    The passage from Barron which was cited in Quinn and Murrell was also cited in Ex parte Homer; Re McElligott (1933) 50 WN (NSW) 158 (Homer), in which Street J held that if a person is charged and acquitted of murder, he cannot be subsequently charged and convicted either of manslaughter or as an aider and abettor (such as an accessory after the fact) and may plead autrefois acquit in bar.

31. [105]

    Murrell was considered by the High Court in AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27 (AJS). In AJS, the appellant was convicted of incest (taking part in an act of sexual penetration with a person whom he knew to be his lineal descendant). The Victorian Court of Appeal held that the conviction was unreasonable (because the evidence was insufficient to establish penetration) and ordered a re-trial on the lesser charge of commission of a sexual act with a child under the age of sixteen. The appellant appealed to the High Court. While he did not dispute that he could be tried for the alternative offence of committing an indecent act, he contended that the Court of Appeal should have directed the entry of a judgment and verdict of acquittal on the charge of incest. The appellant did not dispute that it would then be open for him to be tried for the alternative offence of committing an indecent act.

32. [106]

    The plurality in AJS (Gleeson CJ, Hayne, Heydon and Crennan JJ) said of Murrell:

33. [107]

    Since Murrell, this Court has confirmed the correctness of a directed verdict of acquittal of murder by the trial judge and ordered a re-trial limited to the charge of manslaughter. This course was adopted in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 (PL).

34. [108]

    In PL, the Crown appealed against verdicts of acquittal of murder and manslaughter which had been directed by the trial judge. Chief Justice Spigelman (McClellan CJ at CL and R A Hulme J agreeing) considered Murrell and said at [85]:

35. [109]

    This Court in PL dismissed the Crown’s appeal against the acquittal for murder on the basis that, if PL were re-tried and convicted by a jury of murder, the verdict would be set aside as unreasonable: [90], [93]. Thus, although a trial judge may not direct an acquittal of a charge on the ground that a verdict of guilty would be unreasonable (Doney v The Queen (1990) 171 CLR 207 at 215; [1990] HCA 51), the putative unreasonableness of a verdict of guilty on a potential new trial is relevant to this Court’s discretion whether to order a new trial on that count.

36. [110]

    The Court in PL affirmed the acquittal on the charge of murder, quashed the acquittal on the charge of manslaughter and ordered a re-trial limited to the charge of manslaughter. While the Court in PL addressed Murrell, it plainly did not consider that its express affirmation of the directed verdict of acquittal in respect of the murder charge gave rise to any issue relating to autrefois acquit when it came to the re-trial on the manslaughter charge. PL’s application for special leave to appeal to the High Court was refused.

37. [111]

    I regard PL as authority for the proposition that the direction of a verdict of acquittal of murder (whether by a trial judge or this Court following an appeal) and the ordering of a re-trial limited to manslaughter does not create a plea in bar of autrefois acquit. Although a fresh indictment is presented on any such re-trial, which charges manslaughter, rather than murder, s 163 of the Criminal Procedure Act does not have the effect of prohibiting the taking of that course, which is plainly authorised by ss 6 and 8 of the Criminal Appeal Act.

38. [112]

    In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 (Sio), an appeal from this Court, the appellant relevantly challenged his conviction of armed robbery with wounding. He argued that it was inconsistent with his acquittal of the charge of murder, which had been left to the jury on the basis of constructive murder by way of a joint criminal enterprise to commit armed robbery with foresight on the part of Mr Sio of the possibility of a wounding by the use of the knife by an alleged co-offender.

39. [113]

    Mr Sio’s conviction of armed robbery with wounding was quashed on the basis of wrongful admission of evidence. Accordingly, it was not necessary for the High Court to directly determine the ground of appeal which alleged that the verdict of not guilty of murder was inconsistent with the verdict of guilty of armed robbery with wounding. However, the High Court found as much at [76] when it said:

40. [114]

    At [82], the Court said, of present relevance:

41. [115]

    Thus, in Sio, the High Court held it was open to this Court to enter an acquittal for murder and order a re-trial limited to the lesser alternative of armed robbery for which the appellant may have been found guilty at trial. Murrell was not referred to in Sio.

42. [116]

    Murrell was recently referred to by Dhanji J in Crane v R [2024] NSWCCA 112 at [146] (Harrison CJ at CL and Cavanagh J not commenting). However, the question was academic as it was accepted by the Crown in that case that manslaughter was not a viable alternative to murder: [149]. His Honour also addressed Sio and noted no argument was addressed regarding the effect of s 163 of the Criminal Procedure Act. On this basis, Dhanji J said, at [147], that Sio was not “binding authority overruling the conclusion in R v Murrell that an acquittal will bar a further trial of a lesser offence”.

43. [117]

    I do not accept that Murrell expressed a “conclusion” as opposed to adverting to a potential risk. For the reasons given above, I consider PL to be authoritative. It is also consistent with Sio. That s 163 was not referred to can also be viewed as an appreciation that it does not apply in circumstances where an intermediate appellate court is exercising its powers such as those conferred by ss 6 and 8 of the Criminal Appeal Act.

44. [118]

    In O’Connell, the Court referred to Murrell but because it ordered a conviction for manslaughter, its consideration of Murrell was obiter. McCallum CJ dissented on the ultimate orders since her Honour would have ordered a re-trial confined to the offence of manslaughter. Her Honour considered Murrell and noted, at [41], that this Court in Murrell had declined to direct an acquittal on the murder charge because it was “the ‘prudent’ approach, as opposed to the only correct approach as a matter of legal principle” and that therefore Murrell was not authoritative (cf. Dhanji J in Crane at [147]).

45. [119]

    As a matter of fundamental principle, there is much to be said in favour of the applicant being entitled to a verdict of acquittal of murder in the present case. This Court’s decision that the verdict of guilty of murder was unreasonable is a determination that the only verdict which the jury could rationally have returned in answer to the charge of murder was “not guilty”. Had the jury returned that verdict in the present case, the jury would then have been asked for its verdict in relation to the charge of manslaughter. The consequence of adopting the approach in Murrell in the present case is that the return by the jury of an unreasonable verdict in respect of the murder charge, would deprive the applicant of an acquittal on the charge of murder. This consequence would be neither rational, nor just. Just as the appellant in AJS was entitled to an order for acquittal on the charge of incest, the applicant is, in my view, entitled to an order for acquittal on the charge of murder. This approach is consistent with Quinn, PL and the High Court’s endorsement in A2 of Pedrana. As there is to be no re-trial of the applicant on the charge of murder (since it was not open to the jury to convict him of that charge), he ought be acquitted of that charge.

46. [120]

    Wood CJ at CL’s reservation in Murrell about directing a “general [verdict of] acquittal” would appear to have been founded on a concern that, if the Court had acceded to Mr Murrell’s application for a verdict of acquittal on the murder charge, it would be this Court, rather than the jury, which would be responsible for the verdict of acquittal. This situation was contrasted with Quinn, in which it was the jury which had returned the verdict of acquittal on the murder charge. Any basis for this reservation has, in my view, been removed by PL, where the murder charge did not go to the jury because the trial judge directed the verdict of acquittal (which was confirmed by this Court). Although PL concerned a Crown appeal against a directed acquittal, it is not materially distinguishable from the present case. Accordingly, the consequence of Quinn and PL is that an acquittal of murder ought be directed whether the verdict of acquittal of murder is returned by the jury (as in Quinn) or found by this Court to be the only rational verdict open to the jury on the murder charge (as in PL and in this case).

47. [121]

    PL supersedes Murrell (which did not need to be overruled in PL because the relevant approach in Murrell was couched in terms of prudence, rather than principle) and relevantly applies. PL is also consistent with the approach taken in Quinn and Sio. In these circumstances, this Court ought direct the entry of a verdict of acquittal on the charge of murder.

Proposed orders

1. [122]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the conviction in respect of the murder charge and, in lieu thereof, direct that a verdict of acquittal be entered in respect of the charge of murder.

   4. (4)

      Order a new trial limited to the offence of manslaughter.

   5. (5)

      The matter is remitted to the District Court arraignment list on 17 October 2025 at 9.30am.

2. [123]

   FAGAN J: I agree with Adamson JA that the jury's verdict of guilty of murder is unreasonable and cannot be supported. I have independently reviewed the entirety of the evidence at trial that could bear upon whether the applicant believed his conduct was necessary to defend himself. I find that it was not open to the jury to be satisfied beyond reasonable doubt that he did not act upon that belief. The evidence was not capable of excluding a reasonable possibility that he acted in self defence. The conviction of the applicant on the charge of murder must therefore be quashed. I also agree, for the reasons Adamson JA has given, that the applicant is entitled to acquittal on that charge and that the entry of that verdict by this Court will not give rise to a plea of autrefois acquit upon his re-trial for manslaughter. Accordingly, I agree with the orders her Honour has proposed.

3. [124]

   COLEMAN J: My own review of all of the evidence at trial that could bear upon whether it was reasonably possible that the applicant believed he was acting in self-defence has led me to conclude that the jury’s verdict is unreasonable and should be quashed. It was not open to the jury to be satisfied beyond reasonable doubt that the applicant was not acting on that belief when he stabbed the deceased. The evidence does not exclude the reasonable possibility that he had the belief that his actions were in self-defence.

4. [125]

   I also agree with Adamson JA, for the reasons her Honour gives, that there should be a verdict of acquittal to the charge of murder and a new trial on the charge of manslaughter.

5. [126]

   I agree with the orders proposed by Adamson JA.