Douglass v R

ies: Ammie Douglass (Applicant) Crown (Respondent) Representation: Counsel: A Francis with M Voleynik (Applicant) E Balodis (Respondent)

Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2016/297051 Publication restriction: (1) The witness who has given evidence in these proceedings on 19, 20, 21 and 22 November 2018 is to be referred to only by a pseudonym ("A").

(2) Any matter which is likely to lead to the identification of "A" is not to be published. Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: R v Douglass (No 4) [2019] NSWSC 366 Date of Decision: 3 April 2019 Before: Schmidt J File Number(s): 2016/297051

Judgment

1. BATHURST CJ: The applicant, Ammie Douglass (the applicant) seeks leave to appeal against her conviction for murder on the following grounds: Ground 1: The verdict is unreasonable and cannot be supported by the evidence; Ground 2: The trial judge erred in her Honour's directions to the jury concerning the element of causation; Ground 3: A miscarriage of justice has been occasioned by the reception of evidence of the applicant's admissions; and Ground 4: The trial judge erred in failing to leave an alternative verdict of manslaughter to the jury.
2. For the reasons given by Rothman J, I agree that ground 1 has not been made out.
3. I agree with the reasons of Rothman J and the additional reasons of Johnson J that ground 2 of the grounds of appeal has not been made out.
4. I agree with the reasons of Johnson J that ground 3 has not been made out but that ground 4 has been established.
5. In those circumstances I agree with the orders proposed by Rothman J.
6. JOHNSON J: I have had the advantage of reading, in draft, the judgment of Rothman J. I agree with his Honour that Ground 4 should be upheld, the conviction quashed and a new trial ordered.
7. What follows constitutes my reasons for joining in those orders.
8. Rothman J has set out the factual background to the appeal which I gratefully adopt.

Appeal Against Conviction

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

Ground 2 - The Causation Issue

1. As Rothman J observed (at [118]), the trial Judge provided written directions to the jury concerning the elements of murder and murder by extended joint criminal enterprise (MFI38) and a question trail with respect to issues in the trial (MFI39). Her Honour expanded on these directions in summing up to the jury, including further directions on causation related to the circumstances of this trial.
2. Insofar as it is argued in this Court that her Honour's directions to the jury concerning causation were erroneous or deficient, it should be observed that her Honour was not requested to give any further direction to the jury on the issue of causation so that Rule 4 Criminal Appeal Rules applies.
3. In a murder trial, the element that the act of the accused caused death requires the jury to be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause: Swan v The Queen (2020) 94 ALJR 385; [2020] HCA 11 at [24].
4. In the circumstances of this trial, it would have been appropriate for the trial Judge to direct the jury in these orthodox terms with respect to causation. However, the trial Judge was not asked to give a direction in these terms.
5. A failure to give full directions about the elements of an offence does not necessarily amount to a miscarriage of justice: Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51 at [80].
6. For reasons otherwise given by Rothman J with respect to this ground of appeal, I would refuse leave to the Applicant under Rule 4 Criminal Appeal Rules to rely upon this ground.

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

1. No objection was taken by the Applicant's counsel before or during the trial to the admissions said to have been made by the Applicant which are now challenged in this Court by reference to ss.84 and 90 Evidence Act 1995.
2. Where an accused person seeks to object to evidence under s.84 Evidence Act 1995 upon the basis that alleged admissions were influenced by violence or other conduct specified in that section, objection should be taken as a pretrial issue by way of voir dire under s.189 Evidence Act 1995. This was the approach adopted in R v Tarantino (No. 6) [2019] NSWSC 1174 where Beech-Jones J considered objections taken under ss.84, 85 and 90 Evidence Act 1995 in advance of a jury trial. Similarly, in R v Blackman [2018] NSWSC 395, Button J considered and upheld an objection to evidence under s.84 Evidence Act 1995 in a voir dire associated with a special hearing which was proceeding before his Honour sitting without a jury. In R v Spiteri-Ahern; R v Barber; R v Zraika (No. 10) [2017] NSWSC 1380, Rothman J considered a s.84 objection in the context of a Judge-alone trial.
3. In R v Tarantino (No. 6), Beech-Jones J undertook a helpful examination (at [152]-[183]) of the history of ss.84 and 85 Evidence Act 1995, including Report No. 26 and Report No. 38 of the Australian Law Reform Commission. Although the factual circumstances in that case were different to the Applicant's case, it is helpful to set out part of his Honour's analysis of the s.84 issue. Beech-Jones J stated at [184]-[187] (footnotes omitted): "184 Mr Tarantino seeks the exclusion of all of the admissions on the basis of s 84. The text of s 84 is set out above. The Crown submitted that Mr Tarantino was not the subject of any relevant threat and a genuine but deluded belief that a person is threatened does not engage the section. 185 In Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 at [273], the Court of Appeal held that s 84(1) placed the relevant onus upon the party seeking to have the evidence admitted once it was found that there was conduct of the kind referred to in s 84(1). On behalf of Mr Tarantino it was submitted that once there is an evidentiary basis for a finding that conduct of the kind referred to in s 84(1) occurred, the onus is the party seeking admission of the confessions to prove that it did not. I do not accept that submission, however it does not matter as, save for conduct prior to 2000, I am satisfied that there were no relevant threats. In relation to the conduct prior to 2000, I am satisfied that his conversation with Constable Mungovan, attendance at the police station and subsequent confessions to the police were not influenced or affected in any way by any actual threat he might have received before 2000. Instead, they were solely the product of his delusions about being followed and threatened in the immediately preceding years and months prior to his attendance. 185 As noted, it was submitted on behalf of Mr Tarantino that the reference to 'threat' in s 84(1)(b) includes a perceived threat that is the product of a deluded mind. All of the cases that have addressed s 84 have concerned evidence of external conduct (eg, R v Blackman [2018] NSWSC 395). The ordinary meaning of the word 'threat' is an actual threat and not a perceived threat that is only the product of a person's mental processes. The terms of s 84(1)(a) support this, as it difficult to conceive of a threat 'towards the person who made the admission or towards another person' where it is only the product of a person's mental processes. The legislative history of s 84 confirms this construction. Otherwise, I am not satisfied that the admissions Mr Tarantino made to his brothers were the product of any belief on his part that it was necessary to confess to avoid harm to himself or others. 186 It follows that none of the evidence of the admissions described in [3] are inadmissible by reason of s 84 of the Evidence Act."

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

1. Rothman J has summarised what occurred at trial with respect to a possible alternative verdict of manslaughter. The written directions (MFI38) and the question trail (MFI39) did not refer to the availability of a verdict of not guilty of murder, but guilty of manslaughter.
2. The trial Judge had prepared a draft written direction concerning the elements of the offences of murder and manslaughter (MFI36). However, counsel at trial requested that her Honour not give those directions to the jury. The proposed direction concerning manslaughter in MFI36 was confined to manslaughter by way of excessive self-defence.
3. This Court is called upon from time to time to consider a ground of appeal which asserts that the trial Judge erred at a murder trial in failing to leave an alternative verdict of manslaughter to the jury. In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317, the Court (Bathurst CJ, Simpson and Adamson JJ) said at [42]: "This Court has concisely stated the current position, in four propositions, as follows: '(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is 'viable'). (2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict, the judge must accept it. (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (4) (a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. (b) Subject to the provisions of the Criminal Appeal Rules 1952 (NSW), r 4 (see [99]-[100]), the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial'. (emphasis added) R v Kanaan (2005) 64 NSWLR 527; 157 A Crim R 238 per Hunt AJA, Buddin and Hoeben JJ."

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

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

The Sentence Appeal

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

Conclusion

1. I am satisfied that Grounds 1, 2 and 3 should be rejected, but Ground 4 should be upheld. There should be an order for a new trial.
2. For these reasons, I agree with the orders proposed by Rothman J.
3. ROTHMAN J: The applicant, Ammie Douglass, seeks leave to appeal her conviction and her sentence. The conviction occurred after a trial by jury and, after conviction, the trial judge, Schmidt J, sentenced the applicant to a sentence of 26 years' imprisonment, with a non-parole period of 19 years and 6 months, commencing 5 October 2016.
4. The applicant was convicted of having murdered Christopher Whiteley (hereinafter "the deceased") between 6 and 12 August 2016 at Lithgow. Murder is a common law offence but is also a contravention of s 18 of the Crimes Act 1900 (NSW) and carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years' imprisonment.
5. The trial commenced on 19 November 2018; the jury retired to consider its verdict on 5 December 2018; and returned with a verdict of guilty on 7 December 2018. The applicant was sentenced on 3 April 2019.
6. In relation to conviction, the applicant seeks leave to appeal and appeals on the following grounds: 1. Ground 1: The verdict is unreasonable and cannot be supported by the evidence; 2. Ground 2: The trial Judge erred in her Honour's directions to the jury concerning the element of causation; 3. Ground 3: A miscarriage of justice has been occasioned by the reception of evidence of the applicant's admissions; and 4. Ground 4: The trial judge erred in failing to leave an alternative verdict of manslaughter to the jury.
7. These reasons for judgment do not deal with the appeal or application for leave to appeal against sentence.

Brief factual background

1. The applicant's written submissions briefly summarise the facts before the Court, from which summary, together with the Crown's Summary of Trial, the following recitation is largely derived. The deceased was 69 years of age and lived alone in a house on Main Street, Lithgow. One evening, between 6 and 12 August 2016, a co-offender to the applicant (hereinafter referred to as "A") and the applicant entered through the rear of the victim's house. The victim was in the lounge room and, when he became aware of A's presence, a struggle occurred, during which the victim was stabbed multiple times. A stole some money from the victim's pocket, after which he and the applicant left the victim in the house.
2. The victim died from six stab and two incised wounds. His body was left in the house and not found for several weeks.
3. At the time of the applicant's trial, A was serving a substantial sentence for his part in the murder. He was called by the Crown and gave evidence against the applicant, pursuant to an undertaking for which he had received a discount on sentence. The fact of the discount on sentence was before the jury.
4. In the applicant's trial, the evidence of A was that he and the applicant were each armed with a knife, when they went to the victim's home. They had previously discussed stealing money from the premises. Further, the evidence of A was that each of the applicant and A had stabbed the deceased and that the applicant had disposed of her knife, together with a pair of gloves and a home-made balaclava. The disposal of these items occurred, obviously, after the offence and was effected by throwing them over the fence of a nearby property.
5. The items were found later in the yard of a property which adjoined the laneway at the back of the deceased's house and photographs of the items were tendered in the trial. The Crown adduced evidence that those items were tested and that DNA, or, more accurately, material containing DNA, was obtained from the items and the extracted DNA did not exclude the applicant as a contributor to the samples taken from the gloves and the balaclava/beanie. [1] DNA was also recovered from the knife and that DNA had the same profile as the deceased or, more accurately, the deceased could not be excluded as the contributor to the DNA. [2]
6. Various admissions concerning the murder were made by A and the applicant in conversations that were recorded covertly prior to their arrests. The deceased's Medicare card was found in the applicant's house during a search by the police. During the course of her Remarks on Sentence, her Honour noted [3] that the admissions of the applicant in the recorded conversations were consistent with her having an expectation that her presence at the deceased's house would become known to the police.

The Evidence of A

1. The applicant and A had met only two weeks prior to the murder. They were involved in an intimate relationship.
2. In the course of initial questioning by police, A informed the police that only the applicant had stabbed the deceased. [8] During the course of the trial, A was taken to that part of the interview where he had said that the applicant stabbed the front of the deceased, while the deceased was lying on top of him and the following question and answer occurred: "Q: 'How was it that [the applicant] do you think can stab him in the front if he's faced down on top of you?' A: 'Because I had already stabbed him twice in the shoulder, when he was on top of me.'" [9]
3. In the course of his evidence, A went on to concede that his accounts to Police of how the applicant stabbed the deceased "must have been untrue", [10] but he maintained that the applicant stabbed the victim. A then said: "the truth was, that he wasn't meant to get stabbed. It was a robbery gone wrong." [11]
4. During cross-examination, A said that he always carried a knife on him. [12] When asked what happened to his knife, A said that he had buried it in Birubi. [13] Police never recovered a second knife.
5. In the course of his evidence, A agreed that on 13 August 2016, in the context of discussing the matter, he physically assaulted the applicant at her house, while her children were present. [14] He said that he punched the applicant; stomped on her head; tried to strangle her; and kicked her in the ribs. [15] A accepted that the argument which led to the assault occurred because the applicant said she was going to go to the Police.
6. A also accepted that during the argument he held a knife to his own throat and threatened to kill himself, if the applicant went to the Police. [16] He also threatened to kill the applicant and her children. [17]

The Defence Case

1. On 6 December 2016, the applicant participated in an Electronically Recorded Interview of a Suspected Person ("ERISP") and gave evidence at trial denying having been at or near the deceased's house at the time of the murder. The applicant further denied ever having been inside the deceased's house.
2. The applicant testified that, on 13 August 2016, A told her that he killed someone, which led to A and the applicant getting into a fight. [18] She said that A told her that he had lost control and stabbed someone. [19] The applicant testified that she told him that he was a "weak cunt" and that she would call the police. [20] It was at that point that A assaulted the applicant. The police were called and the applicant was taken to the hospital. She did not tell the police the reason for the fight, on her testimony, because she was scared that A would kill her and her children. [21]
3. The applicant testified that she had given the gloves and balaclava that were found near the deceased's house to A, but could not recall precisely when this had occurred. [22]

The Admissions

1. As earlier stated, the police lawfully intercepted conversations between the applicant and her co-offender. It was the applicant's evidence that the various admissions that were made were uttered because she was scared that A would hurt her; [23] A variously told the applicant what to say; [24] and the applicant was worried about losing her children. [25]
2. The applicant submits that she falsely inculpated herself as a consequence of the violence and as a consequence of the fact that she thought A loved her. The applicant submits that the admissions were consistent with the allegedly false account of the applicant's involvement concocted by A. This account was rejected by the trial judge in her remarks upon sentence.
3. In a conversation on 7 September 2016 between the applicant and Daniel Savage, in the presence of A, the applicant asked about police presence at the premises in which the murder occurred. The applicant admits that the balaclava was in the backyard and that her DNA was on it. Further, she admits that her prints were all over the house as she did not have gloves on. The applicant expresses the opinion that she is "gone" and that she and A will "get done for murder".
4. While the applicant gave evidence that she made these admissions because A was present in the room and she was scared of him, the fact is that it is undeniable that the applicant made the admissions and did so at a time when it would have been difficult, if not impossible, for A to have perpetrated any violence against her or her children. At the very least, the applicant could have been silent as to her involvement, but she was not.
5. The applicant relies upon the proposition that the house in which the offence occurred did not have "her fingerprints all over it", but the presence or absence of fingerprints is not necessarily inconsistent with the applicant's presence in the house. The applicant may or may not be aware that fingerprints are not always recoverable from all surfaces that are touched.
6. The applicant's DNA was on the balaclava, but the applicant, in her submissions to the Court, relies upon the proposition that the balaclava was not out the back of the house as she claimed in the alleged admissions. The balaclava, however, was found over the fence. To suggest, as does the applicant in these proceedings, that an admission of this kind would be so precise as to differentiate between the location of the balaclava in the backyard or over the fence is unrealistic.

Unreasonable verdict

1. In dealing with the first ground of appeal, the applicant refers to the alteration in the Crown case from the initial proposition that the applicant stabbed the deceased and, thereby, performed an act that was a substantial contribution to the death of the deceased. During the course of the trial, the Crown, on the submission of the applicant, altered its case to include, as an alternative, murder on the basis of extended joint criminal enterprise. The alleged joint criminal enterprise, as put to the jury in the Crown's closing address, was "stealing from the deceased's house or robbing the deceased". [30]
2. The Crown did not go to the jury on the basis of joint criminal enterprise, simpliciter. Nor did the Crown rely upon the applicant aiding and abetting the murder.
3. Primarily, the applicant relies, on appeal, on the proposition that it was not open to the jury to find, beyond reasonable doubt, that the applicant stabbed the deceased. Of course, there was evidence that the applicant did stab the deceased.
4. The submission of the applicant, on appeal, is that the account of A, as to the applicant's role in causing death, should not be believed. The sentencing judge did not accept it. Further, on appeal, the applicant submits that the evidence of A that the applicant took part in an act causing death, was not divisible and could not be used rationally as probative of the applicant's involvement in a different crime, namely, a robbery or a break, enter and steal, during which the deceased was killed.
5. The applicant submits that the Crown's second pathway to guilt, extended joint criminal enterprise, depended upon demonstrably unreliable admissions and demonstrably unreliable accomplice evidence. Next, the applicant submits that the circumstantial evidence upon which the Crown relies, namely the DNA evidence on the balaclava and gloves, does not displace the doubt raised on the evidence otherwise adduced. The DNA evidence did no more than suggest that the applicant had contact with the items at some point in time.
6. As to the discovery of the deceased's Medicare card in the applicant's house, the applicant submits that this circumstance does not advance the Crown case in circumstances where A, who admitted to having stabbed and robbed the deceased, had been living with the applicant at her house. The other evidence of the applicant's involvement in the robbery or a break and enter was not supported by the objective evidence, otherwise adduced. Regardless of those aspects, the applicant submits that her admissions to different criminal enterprises, taken at their highest, do not establish the necessary mens rea for murder.

Causation

1. The jury were provided with two documents summarising the elements of murder. [32] The document MFI 38 was a written direction, provided by the trial judge, as to the elements of the offence of murder and MFI 39 was a question trail for the guidance of the jury in reaching an appropriate verdict.
2. Essentially, the applicant's submission concentrates on MFI 39, to the exclusion of MFI 38. In MFI 38, the trial judge made clear that the Crown was required to prove beyond reasonable doubt that the applicant stabbed the deceased; that the act of stabbing was a voluntary act; and that the voluntary act of the accused, in stabbing the deceased, caused his death. The precise terms of the relevant written direction on the elements of the offence of murder are: "1. The Crown must prove beyond reasonable doubt that: (1) Mr Whiteley [the deceased] being stabbed was a voluntary act of the accused which caused his death…"
3. The learned trial judge then dealt with the element of the possession of an intention to kill or to inflict grievous bodily harm. As a consequence, the learned trial judge directed the jury that any act of stabbing by the applicant was one that the jury had to be satisfied, beyond reasonable doubt, caused the death of the deceased.
4. The question trail, posed by her Honour to assist the jury, did not deal separately with the aspect of the elements of the offence relating to requiring a decision that the stabbing by the applicant, if it had occurred, caused the death of the deceased. Her Honour did note that death was caused by multiple stab wounds and that this was an agreed circumstance.
5. In order to establish that an accused is guilty of murder, the act committed by the accused, in this case the applicant, is required to be determined, beyond reasonable doubt, as causing the death of the deceased. [33] But there may be more than one act that causes death.
6. An act is causative of the death of the deceased where the act substantially contributes to the death of the deceased. [34] In the dissenting judgment of Gaudron and Gummow JJ in Osland, their Honours, uncontroversially in terms of the majority judgment, said: "A person may be guilty of murder as principal even though his or her act is not the immediate cause of death. A person who, with intent to kill, does some act which substantially contributes to the death of another, may be guilty of murder notwithstanding that the immediate cause of death is the act of another person or, even, the deceased's own act. And the same is true if the person does the act, not with intent to kill, but with intent to inflict grievous bodily harm or with knowledge that it is probable that death or grievous bodily harm will result although indifferent to that consequence".

The admissibility of the admissions

1. The applicant submits that the trial judge should not have admitted the statements of the applicant, evidence of which was produced from witnesses and lawfully obtained listening devices. The applicant submits that s 84 of the Evidence Act excludes the admissions, because they were influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind. The terms of s 84 of the Evidence Act are as follows: "84 Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by-- (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced."
2. As already stated, the applicant submits that the statements were coerced or the result of domestic violence directed at the applicant by her co-offender and, to some extent, directed at the co-offender by the co-offender in circumstances where he was aware that the applicant cared for him and would seek to protect him. Further threats, it is said, were made against the applicant's children.
3. There are a number of aspects of the operation of s 84 of the Evidence Act that require discussion. First, the provisions of s 84(1) of the Evidence Act require the satisfaction of the Court that is dealing with the admissibility of the statements. Secondly, the onus is on that party seeking to have the statement admitted, as a result of the requirement that the Court be satisfied that the admission and the making of it "were not influenced" by the conduct described in s 84(1)(a) or a threat thereof.
4. As has been commented on a number of occasions, the statute must be read as a whole and the context in which s 84 of the Evidence Act is promulgated must be understood in construing the section. The Act renders all material that affects the probability of the existence of a fact (directly or indirectly) as admissible, assuming the fact is an issue in the proceedings. [37]

Manslaughter

1. Neither the applicant, nor the Crown, put to the jury facts, circumstances or submissions that relied upon the proposition that whatever occurred was manslaughter and not murder. The absence of such submissions does not conclude the result of this ground of appeal.
2. In many respects this ground is inextricably interwoven with the submissions put on behalf of the applicant that the verdict of murder was unreasonable. However, it is necessary to deal with this aspect of the appeal before dealing with the suggestion that there was an unreasonable verdict.
3. Manslaughter is a statutory alternative in every indictment for murder. While murder is and has always been a common law offence, it is now governed by the terms of s 18 of the Crimes Act 1900 (NSW). Murder is defined as requiring a state of mind, at the time that the conduct of the accused is performed, which causes the death of the victim, involves a reckless indifference to human life or an intention to kill or to inflict grievous bodily harm. If that state of mind is absent, assuming for present purposes that the act causing death was unlawful, the crime committed is manslaughter. In that sense, it is a punishable homicide other than murder. [47]
4. The crime of manslaughter does not require separate charging when murder has been charged. If an accused is charged with murder, the jury has the capacity of returning a verdict of manslaughter. This is a consequence of the history that an unlawful killing was a felony at common law and murder and manslaughter are each a description of the one felony at common law. [48]
5. Trial judges have traditionally referred to the availability of manslaughter on an indictment alleging murder as the "statutory alternative", because, apart from the common law position to which I have just referred, it was the subject of an express legislative alternative in s 23(2) of the Crimes Act 1900-1982. The provision was omitted as a result of the enactment of the Crimes (Homicide) Amendment Act 1982 (NSW) and s 23 of the Crimes Act now only deals, relevantly, with manslaughter as a result of provocation.
6. There are circumstances where, for obvious reasons, an accused will not address the possibility of a manslaughter verdict. Where the accused addresses the jury on the basis that the accused was not present when the crime was committed, it would be, ordinarily, difficult to argue in the alternative that, if the accused were present, the accused did not have the state of mind that would result in murder.

Unreasonable verdict

1. A ground of appeal that raises the unreasonableness of the verdict requires the Court to examine the whole of the evidence and ask itself whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The focus in the foregoing is satisfaction beyond reasonable doubt, not whether the verdict was "open". [53]
2. As the High Court determined in M, in most cases where the appellate court experiences a doubt which a jury ought also to have experienced, the verdict is an unreasonable one. The only qualification, in that regard, is where the doubt experienced by the appellate court is one that is capable of being resolved by the jury's advantage in seeing and hearing the evidence. [54]
3. As stated, the focus of the Court's attention must be the "unreasonableness of the verdict" and the term formerly utilised of "unsafe and unsatisfactory" has been disapproved. Whether the verdict was open to the jury does not, in itself, answer the question. The question is answered by whether the jury ought to have experienced reasonable doubt and that is answered by the conclusion as to whether the appellate court has a reasonable doubt that is not resolved by the jury's advantage in observing the evidence. [55]
4. Thus, the issue that the Court is required to answer is not whether there was evidence upon which a jury could have convicted, in the sense that there was evidence of each element of the offence, but whether it should have convicted or should have had a reasonable doubt. In other words, the question before the appellate court is whether, on all the evidence, it was open to the jury to be satisfied that there was no reasonable hypothesis inconsistent with guilt.
5. In answering the question that is posed by such a ground of appeal, it is the evidence as a whole that must be considered, not each part of the evidence in a piecemeal fashion. [56] More importantly, in the circumstances of the current offence, it is the ultimate verdict that is examined by the appellate court, not any particular path to the verdict.
6. In the current proceedings, as already indicated, the applicant relies upon two aspects of the evidence that give rise to doubt. First, the applicant maintains that the jury should have had a reasonable doubt as to whether the applicant physically stabbed the deceased and, in that regard, whether such stabbing was a substantial cause of the death of the deceased.

Conclusion

1. The view I have formed is that error occurred by not leaving manslaughter to the jury as a possible verdict arising from the facts before the Court. Otherwise, the grounds of appeal against conviction fail and should be dismissed. In the circumstances, the appropriate order is to order a retrial on the indictment.
2. As consequence of the foregoing, I would propose that the Court makes the following orders: 1. To the extent necessary, leave to appeal be granted; 2. To the extent necessary, leave be granted under Rule 4 of the Criminal Appeal Rules to argue the failure to leave manslaughter to the jury; 3. Ground 4 of the appeal against conviction be allowed; 4. All other grounds of appeal be dismissed; 5. The conviction of the applicant on the charge that between 6 August 2016 and 12 August 2016, at Lithgow in the State of New South Wales, she did murder Christopher Whiteley be quashed; 6. The indictment presented on 19 November 2018 and/or the aforesaid charge of murder, be subject to a retrial in the Supreme Court of New South Wales; 7. The matter is to be listed in the Supreme Court Arraignment list on 6 November 2020.

Endnotes

1. Tcpt, p 437(47)-438(2); Tcpt, p 438(48)-439(4); Tcpt, 440(42)-441(4); Tcpt, 441(38- 50); Tcpt, p 442(20-28).
2. Tcpt, p 444(32-36).
3. Remarks on Sentence, at [52].
4. Tcpt, p 417(23-24).
5. Tcpt, p 417(26)-418(1).
6. Crown Opening, Tcpt, p 25(10-17).
7. Crown Closing Address, Tcpt, p 729(5-35); Summing Up, at p 18-23.
8. Record of Interview of A, 31 May 2017.
9. Tcpt, p 145(37-39).
10. Tcpt, p 146(4-5).
11. Tcpt, p 146(26-27).
12. Tcpt, p 152(39-43).
13. Tcpt, p 153(22-29).
14. Tcpt, p 154(48).
15. Tcpt, p 154(45-48).
16. Tcpt, p 157(42)-158(20).
17. Tcpt, p 160(36-49).
18. Tcpt, p 569(24-25).
19. Tcpt, p 572(21-22).
20. Tcpt, p 572(29-38).
21. Tcpt, p 569(36-39).
22. Tcpt, p 590(43)-592(14).
23. Tcpt, p 586(42-48); Tcpt, p 616(1-2); Tcpt, p 649(39-42); Tcpt, p 657(8-13).
24. Tcpt, p 576(4-17); Tcpt, p 608(11-16); Tcpt, p 610(33-35); Tcpt, p 617(8)-618(46); Tcpt, p 619(19-45); Tcpt, p 620(5-8); Tcpt, p 623(12-14); Tcpt, p 611(39-40); Tcpt, p 623(12-14).
25. Tcpt, p 575(13-20).
26. Tcpt, p 345(8-13).
27. Exhibit 4B, Tcpt.
28. Exhibit 4C, Tcpt.
29. Tcpt, p 224(35)-225(22).
30. Crown Closing at Tcpt, p 729(12-26).
31. Summing Up, at p 35.
32. MFI 38 and MFI 39.
33. Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.
34. Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [15].
35. Osland v The Queen, supra.
36. Royall v The Queen, supra, at (1991) 172 CLR 441-451.
37. Evidence Act, ss 55 and 56.
38. Evidence Act s 59.
39. Evidence Act s 81(1).
40. Australian Law Reform Commission, Interim Report on Evidence (1985) No 26, Vol 1.
41. R v Spiteri-Ahern; R v Barber; R v Zraika (No 10) [2017] NSWSC 1380, at [18] and following.
42. R v Spiteri-Ahern, supra, at [18]-[22].