Gardiner v The King [2026] NTCCA 4

Respondent: Office of the Director of Public Prosecutions

Gardiner v The King [2026] NTCCA 4

[1] The applicant and his brother, Matthew Gardiner ('MG'), were jointly charged with two counts, one being the murder of Dillon Willis ('deceased') contrary to s 156 of the Criminal Code (Count 1) and one being recklessly endangering serious harm to Sam Salmon ('SS') contrary to ss 174D and 174G of the Criminal Code (Count 2).

[2] Following a trial by jury, the applicant and MG were each found guilty of Count 1 and not guilty of Count 2.

[3] The applicant was sentenced to life imprisonment with a non-parole period of 20 years.

[4] On 3 July 2025, the applicant applied for leave to appeal against his conviction on Count 1 and an extension of time within which to apply for leave to appeal as the time within which to seek leave to appeal expired on 15 May 2024.

[5] The single proposed ground of appeal is that the trial Judge erred in his directions to the jury in respect of the charge of murder, thereby occasioning a substantial miscarriage of justice. That ground has the following particulars:

(a) The trial Judge failed to adequately summarise the evidence given in the trial.

(b) The trial Judge failed to relate the law to the evidence given in the trial.

(c) The trial Judge failed to put fairly before the jury the defence case and the arguments of defence counsel.

[6] The respondent argued that the proposed ground of appeal has no merit and leave to appeal, and the extension of time should be refused, or if granted, the appeal should be dismissed.

[8] The applicant was 20 years old at the time of the offending. He was in a relationship with a 19 year old female ('CW'). They had a child together.

[9] MG was 26 years old at the time of the offending. He lived with his mother in a Darwin suburb with his two sisters and his two children.

[10] The deceased was 20 years old. He was friends with SS, who was 18 years old, and another female aged 17 ('EH').

[11] It was unlikely that the deceased, SS and EH knew the applicant or MG.

[12] On 26 May 2021, the applicant and CW rented a cabin at a caravan park. That day, CW borrowed her mother's car ('Hyundai') and drove the applicant and their daughter to the caravan park and checked in. That afternoon, they socialised at the caravan park with family members. The applicant and MG consumed alcohol.

[13] At around 8pm or 9pm, CW drove the family member's home. The applicant and MG stayed at the cabin. When CW returned, she lay down in the bedroom of the cabin with the child. The applicant and MG continued drinking alcohol on the veranda.

[14] The applicant asked CW to drive him and MG to Karama. She refused several times, but he kept asking and she agreed to do so. At 11.04pm, CCTV captured the Hyundai leaving the caravan park. The applicant was in the front passenger seat, MG was in the rear left passenger seat and the child was in a baby seat behind the driver's seat.

[15] During the drive, the applicant and MG directed CW to drive into the car park of a shopping centre in Karama. When she did so, the deceased, SS and EH were sitting on some fire hydrant pipes at the end of the car park talking amongst themselves.

[16] At the direction of the applicant and MG, CW pulled the Hyundai over about 10 metres from the deceased's group. The applicant got out of the Hyundai first. He was shirtless and had two visible kitchen knives tucked into the front of his pants. He approached the group and asked SS what his name was and whether he knew someone called 'Weslyn'.

[17] As the applicant got out of the Hyundai, MG struggled to open his door as the child lock was on. After a few seconds, he put his hand through the window and opened the door using the external door handle. When he got out, he is captured on CCTV holding a knife in his left hand. MG approached the group where the applicant was talking to SS.

[18] MG approached the deceased, walked behind him, stepped closer to him and stabbed him once to the chest, once to the back and to the hand. The wounds to the chest and back penetrated the deceased's heart and were fatal.

[19] As MG stepped closer to the deceased immediately stabbing him, the applicant also stepped closer to SS and took a swing at him with his left hand. The applicant was holding one of the knives from his pants and attempted to stab SS with a wide swinging motion which did not connect.

[20] The deceased, SS and EH ran away from the applicant and MG. MG gave chase for a short period before rejoining the applicant, who held his arm out to MG as if to receive him in a show of support and camaraderie. The applicant and MG quickly walked then jogged back to the Hyundai and CW drove them away from the scene at speed.

[21] The entirety of what occurred was caught on CCTV.

[22] CW dropped MG off nearby and then drove back to the caravan park with the applicant and the child. CCTV captured the Hyundai returning at 11.26pm.

[23] SS called 000. He also called for the help of two nearby security guards patrolling the shopping centre area. Paramedics arrived and commenced resuscitation on the deceased and took him to hospital. He was declared deceased shortly afterwards. The cause of death was the stab wounds to the chest and back which penetrated his heart.

[24] At 12.08am on 27 May 2021, the applicant sent a text message to a friend which said: 'I just finished stabbing cunts what's up'. He immediately sent another text message which said: 'Delete my message'.

[25] At 12.10am on 27 May 2021, the applicant sent a text message to a man named 'Weslyn' which said: 'Oi I shanked them Cunts up in karrama I did it for you my brother nobody's gonna tAlk shit'.

[26] At 1.20am on 27 May 2021, MG was taken into protective custody by police due to his intoxication. Police did not then know about his involvement in the stabbing incident. Later that morning, police arrested the applicant at the caravan park.

[27] Police seized the Hyundai. In its rear footwell a knife was found with the deceased's blood on the blade. Two kitchen knives were found in the glove compartment which matched the brand of knives from the caravan park cabin rented by the applicant and CW.

[28] As to the charge of murder, the Crown case was that the applicant had either aided and abetted the commission of the deceased's murder by MG within s 43BG of the Criminal Code, or alternatively the deceased's murder was committed jointly by the applicant and MG within s 43BGA of the Criminal Code.

[29] As to the charge of recklessly endangering serious harm, the Crown case was that MG had either aided and abetted the applicant in attempting to stab SS, or alternatively the attempted stabbing was committed jointly by the applicant and MG.

[30] At the commencement of the trial, MG pleaded guilty to manslaughter, thereby admitting the physical elements of the offence. In his case, the critical issue was whether, given his degree of intoxication, he intended to kill or cause serious harm to the deceased when he stabbed him.

[31] On the applicant's case, there was essentially no dispute as to the factual matters referred to above. The only issues in the applicant's case were, as to Count 1, whether the applicant had aided and abetted MG or acted jointly with MG in stabbing the deceased and, as to Count 2, whether the applicant had a knife in his hand when he swung at SS.

[32] The trial ran for nine days between 9 and 17 April 2024.

[33] During opening addresses, the prosecutor told the jury the issues in the case were limited and likely to be whether MG intended to kill or cause serious harm to the deceased, and whether and how each of the applicant and MG had participated in stabbing the deceased and endangering serious harm to SS. Counsel for MG said that there was no dispute that MG had stabbed the deceased and caused his death and that the issue in his case was whether he intended to kill the deceased or cause him serious harm.

[34] The applicant's counsel told the jury there was video footage of the entire event, that as to Count 1 the issue would be whether the Crown could prove the applicant had entered into an agreement with MG to commit the offence of murder and, as to Count 2 the issue would be whether the applicant had in fact physically taken a knife in his hand at the time of the alleged stabbing. He also told the jury that, because the crucial events were caught on CCTV, they should not be surprised if many of the witnesses are not questioned as 'the evidence will speak for itself'.

[35] The Crown called 16 witnesses, but only two were cross-examined by the applicant's counsel, being CW and SS.

[36] MG's counsel cross-examined only five of the Crown's witnesses. MG and one of the applicant's sisters gave evidence in MG's case, largely directed to MG's level of intoxication. The applicant's counsel did not cross-examine either of them.

[37] There were a number of sets of agreed facts.

[38] Closing addresses commenced at 2pm on 16 April 2024 and concluded before 4.24pm that day. In relation to the applicant, the prosecutor's closing address occupied some three pages of transcript, the applicant's closing address occupied only six pages of transcript and MG's closing address occupied some three and a half pages of transcript.

[39] The prosecutor submitted that there were numerous reasons why the jury would infer beyond reasonable doubt that MG intended to kill or cause serious harm to the deceased. He also submitted that they should not accept MG's evidence that he had no memory of the events due to his intoxication and that they should reject the evidence of CW because she was not a credible witness.

[40] The prosecutor then identified the facts upon which the jury could draw the inference that the applicant knew MG was going to stab the deceased when he did it and he and MG were 'acting as one' when committing the murder of the deceased and attempting to stab SS. Those facts were: (a) the applicant wanted to go to Karama with MG, having asked CW more than once to drive them there; (b) the purpose of the trip to Karama was not to drop MG off because, if it had been, CW could have taken him while the applicant stayed at the caravan park with the baby, rather than waking the baby to put her in the car; (c) both the applicant and MG armed themselves with knives from the cabin before they got into the car, demonstrating their intention and planning together; (d) both men must have each known the other was armed before they got into the car; (e) they both must have contemplated using the knives, there being no other reason to take them; (f) that they had knives was an indication of their intent; (g) they both tried to get out of the car at the same time; (h) they both had the knives when they did so; (i) the applicant got out first and was the one who initially engaged with the deceased's group; (j) the applicant was the leader and his movements were calculated; (k) the applicant waited for MG before grabbing a knife and swinging at SS; (l) the applicant swung at SS immediately after MG stabbed the deceased, demonstrating that he was not surprised when MG did so; (m) the applicant knew that MG was going to stab the deceased because when MG moved towards the deceased just before stabbing him, the applicant simultaneously moved towards SS; (n) the applicant and MG had adopted a very calculated position together and were acting as one, there being no pause or hesitation; (o) after MG returned from the short chase, the applicant put his arm out 'to welcome [MG] back' showing approval of 'a job well done'; (p) the applicant did not try to separate his actions from MG's actions, but rejoined him; (q) at no time did the applicant raise his arms showing 'what have you done?'; (r) the applicant and MG jogged back to the car together; (s) when back in the car, the applicant said: '[i]t will be alright', indicating concurrence rather than displeasure at what had happened; and (t) the text messages the applicant sent after the stabbing indicated his concurrence and happiness at what had occurred.

[41] MG's counsel submitted in closing that the evidence as to MG's intoxication left open the reasonable possibility that he did not have the requisite intent, relying on the pathologist's evidence about the combined effects of alcohol and temazepam and MG's evidence that he had no memory of what occurred.

[42] The applicant's counsel told the jury that the only real issue in relation to Count 1 was whether there was an agreement between the applicant and MG to kill or cause serious harm to the deceased, or whether the applicant had intended to assist or encourage MG to do so. He said this was the 'one crucial point'. He said there was an obvious scenario consistent with innocence, namely that MG had stabbed the deceased without warning and on a frolic of his own. There was no plan, no arrangement and just a 'mad brain snap'. Unless that possibility could be excluded beyond reasonable doubt, the applicant was entitled to the benefit of that doubt.

[43] The applicant's counsel identified the following facts: (a) there was no direct evidence that the applicant knew MG had a knife; (b) neither SS nor EH saw MG with a knife; (c) there was no evidence that the applicant held a knife in his hand; (d) the CCTV footage showed MG fatally stabbed the deceased without warning, 'in a moment of what seems madness'; (e) the applicant's response was slightly delayed and he reacted by swinging his arm towards SS; (f) SS said the applicant was not behaving aggressively and he was not concerned even though the applicant had knives tucked in his pants; (g) the CCTV footage did not show the applicant reaching into his pants to draw a knife before swinging a 'haymaker' at SS; (h) when MG returned, the applicant did put his arm out as 'some sort of coming back in', but the CCTV footage did not show the applicant carrying anything; (i) the knives the applicant had were no better than butter knives and very different to MG's knife; (j) the applicant's text messages were immature and stupid, but 'rubbish' and 'bravado from a young brother after witnessing what his older brother did', as demonstrated by the fact that he did not 'shank' anyone and was intoxicated.

[44] Counsel for the applicant referred to CW's evidence that she and the applicant were 'in shock' after the incident, that she did not know anything untoward was planned or she would not have taken her baby. CW said that back at the caravan park she asked the applicant why she had to witness that and he said 'sorry' and that 'he didn't know that was going to happen', and while she had initially lied to Police, she almost immediately thereafter told them the truth and gave a recorded statement.

[45] As to Count 2, the applicant's counsel submitted that there was no evidence the applicant had a knife in his hand and tried to slash or cut SS when he took a swing at him, SS did not see a knife in his hand and no knife could be seen in the CCTV footage.

[46] The summing up commenced at 9.37am on 17 April 2024 and the jury retired to consider its verdict at 11.02am that day.

[47] After some introductory remarks, the trial Judge told the jury that each accused faced two charges. His Honour said that as to the charge of murder, it is alleged that MG was the person who actually stabbed the deceased causing his death, which had been accepted by MG. The significant issue the jury would have to decide regarding MG was whether he had an intention either to kill or to cause serious harm to the deceased when he stabbed him. As to the applicant, the trial Judge said the prosecution did not allege that he did any act that caused the deceased's death. The case against the applicant was that he was jointly involved with MG in killing the deceased. If the jury were to find MG guilty of murder, the significant issue they would have to decide regarding the charge of murder against the applicant was whether he and MG were jointly involved in the killing of the deceased. The trial Judge explained Count 2 in a similar way.

[48] The trial Judge gave the usual directions about the onus and standard of proof, the requirement to deal with the charges against each accused separately, the use of some evidence only against one accused and not both of them, the drawing of inferences generally and about a person's state of mind, the need to guard against emotions, the use of common sense and life experience, the assessment of a witness's credibility, the need for unanimity in the verdict, the failure of the applicant to give or call evidence, and the decision of MG to give evidence.

[49] When dealing with inferences, the trial Judge identified the inferences the prosecution asked the jury to infer, including that MG had an intention to either kill or cause serious harm to the deceased, that MG and the applicant were party to an agreement to either kill or cause serious harm to the deceased, that the applicant was present when MG murdered the deceased, intentionally assisting or giving encouragement to MG to commit that crime, that the applicant was reckless as to the danger of serious harm to SS when he attempted to stab SS, that the applicant and MG were party to an agreement to stab SS and that MG was present when the applicant attempted to do so, intentionally assisting or giving encouragement to the applicant to commit that crime. The trial Judge told the jury they were asked to infer those things from the evidence, they must ensure that any inference they draw is the only reasonable inference available in the circumstances and it was a matter for them to decide whether they were prepared to draw those inferences, bearing in mind the directions just given.

[50] The trial Judge then dealt with the evidence of MG, the prosecution's submission that MG had lied in his evidence, MG's case, the relevance of MG's intoxication to the charge of murder and the expert evidence of the pathologist about the effects of intoxication and benzothiazines.

[51] The trial Judge then addressed the elements of each offence, commencing with the charge of murder. The trial Judge distributed a documentary aide to the jury and took them through it as he addressed them.

[52] His Honour dealt first with that charge as it related to MG.

[53] His Honour then addressed the charge of murder as it related to the applicant. Relevantly, he said:

I will now turn to count 1 as it relates to [the applicant]. And you will recall no doubt that [the applicant] as I told you earlier did not engage in any conduct that actually caused the death of the deceased. So what we are looking at here is the allegation that, to use a neutral term, he was jointly involved with his brother [MG] in the offence of murder.

... There are two pathways that the Crown says you can follow to find [the applicant] guilty of the charge of murder in count 1. Pathway one is what may be referred to as aiding and abetting [MG]. To find [the applicant] guilty of count 1 using pathway number one, the Crown must prove beyond reasonable doubt that on 26 May 2021, [MG] murdered [the deceased].

So in other words, you can only find - that's the first element, you can only find [the applicant] guilty of count 1 if you have already determined that [MG] is guilty of murder. If you were to find that [MG] is not guilty of murder then you cannot find [the applicant] guilty of murder. So that's the first element.

The second thing that the Crown must prove beyond a reasonable doubt is that [the applicant's] conduct in being present at the scene where [the deceased] was killed actually assisted or encouraged the murder of [the deceased] by [MG].

Being present at the time when somebody else commits a crime does not make you guilty of a crime. Something more must be established. That something more is that your presence actually assisted the person committing the crime or encouraged them in the commission of a crime.

In this particular case, the Crown alleges that [the applicant] was there to assist and encourage [MG] in committing the crime of murder by having his presence there as support as a back up person if there was to be some form of trouble with regard to the commission of the offence. In other words, he is there as a person who is providing support and assistance potentially to [MG], if it is needed.

The next thing that the Crown must prove relates to the intention of [the applicant]. In order for you to find that [the applicant] is guilty of the offence of murder using pathway number one, you must also be satisfied that [the applicant] intended that his conduct would assist or encourage [MG] in the commission of the offence of murder, or his conduct would assist or encourage [MG] in the commission of an offence other than murder, but he was reckless as to [MG] committing the crime of murder.

Now, these again are matters which the Crown says you would infer from surrounding conduct and it is a matter entirely for you whether you are prepared to draw that inference.

I will now turn to pathway two, which I have referred to as 'Joint commission' with [MG]. To find [the applicant] guilty of murder under this pathway, the Crown must prove beyond reasonable doubt that on 26 May 2021, [the applicant] and [MG] entered into an agreement to commit an offence, and an offence was either committed in accordance with the agreement or in the course of carrying out the agreement.

Now, [the applicant] committed an offence in accordance with the agreement if the agreement was to kill or cause serious harm to [the deceased] and [the deceased] was killed by [MG]. So again, you will see that effectively this means that you must be satisfied that [MG] is guilty of the offence of murder before you can convict [the applicant] of the charge of murder under pathway number two.

Now, [the applicant] committed an offence in the course of carrying out the agreement if he was reckless about the commission by [MG] of the offence of murder actually committed in the course of carrying out the agreement. [Referred to meaning of 'recklessness']

So [the applicant] ... would be reckless about [MG] committing the crime of murder if he was aware of a substantial risk that [MG] would commit the crime of murder and having regard to the circumstances known to [the applicant], it was unjustifiable to take that risk.

Now ... [the applicant] has committed an offence under this pathway, only if he and [MG] intended that an offence would be committed under the agreement. Now an agreement in that regard may consist of a non-verbal understanding and be entered into before or at the same time as the conduct which caused the death of [the deceased].

In other words, you do not have to have evidence that they sat down and drew up a contract and signed it or anything of that nature, or even that there was any conversation about it in the car.

You are asked to infer from the surrounding circumstances that when they got out of the car, and the Crown says attacked - ... [MG] attacked the deceased, that there was a non-verbal understanding or agreement that [MG] would attack someone and would either kill them or cause them serious harm.

[54] The trial Judge went on to deal with Count 2 in relation to both the applicant and then MG. His Honour then dealt with some matters in conclusion.

[55] The jury retired at 11.02am. The trial Judge directed that they not return a verdict before 12pm.

[56] The trial Judge expressly asked counsel if there were any matters they wanted to raise. Counsel for the applicant said there were none. No issue was raised by counsel for MG or the prosecutor either.

[57] The jury returned its verdicts at 2.20pm that day.

Legal principles: miscarriage of justice and failure to give directions

[58] This was an application for leave to appeal under s 410(a) and/or (b) of the Criminal Code. The proposed ground of appeal is set out in paragraph 4 above.

[59] By s 411(1) of the Criminal Code, the Court would be obliged to allow the appeal if of the opinion that the jury's finding of guilt should be set aside on the ground (relevantly) that there was a miscarriage of justice. This ground is the third limb of the common form of criminal appeal provision in s 411(1) of the Criminal Code. Those limbs are followed by 'the proviso' in s 411(2), which provides that the Court may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[60] The third limb of s 411(1) encompasses errors or irregularities affecting an applicant's trial which are either fundamental, in which case there will be a substantial miscarriage of justice, and other errors or irregularities.[1]

[61] If the error or irregularity is fundamental to the trial, the guilty verdict must be set aside; the proviso is necessarily inapplicable, and it is unnecessary to undertake any further assessment of whether the wrong decision could have had any effect on the verdict and whether no substantial miscarriage of justice has occurred; and the appeal must be allowed.[2]

[62] An error fundamental to the trial is an error in the sense discussed in the authorities as necessarily meaning there was a substantial miscarriage of justice.[3] By way of example, in Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351, such an error was described (at [123]) as an error 'so profound as to be characterised as a failure to observe the requirements of the criminal process in a fundamental respect'. In Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62, such an error was described (at [44]) as an error 'so serious that it will be a substantial miscarriage of justice irrespective of whether it might have affected the outcome of the trial'.

[63] For other errors or irregularities to constitute a miscarriage of justice within the third limb, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred, where 'could' means 'having the capacity to' and 'realistically' distinguishes the assessment of the possibility of a different outcome from a possibility that is fanciful or improbable.[4] This threshold of materiality is for the appellant to establish, but the burden is not onerous, and it does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.[5] This assessment is qualitatively different from the assessment to be made in applying the proviso, namely whether the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.[6]

Legal principles: judicial instructions in criminal trials

[64] The applicant argued that the trial Judge's failures, as particularised in the proposed ground of appeal, comprised a fundamental error or irregularity in the trial.

[65] The applicant argued that there were five essential requirements that must be met by a trial Judge in summing up for the jury in order to dispose of the fundamental task of ensuring a fair trial of the accused. Those essential requirements were said to be:

(1) The trial Judge must instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case, which requires instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury.

(2) The trial Judge must relate the law to the facts of the case.

(3) The trial Judge must put the defence case.

(4) The trial Judge must outline the main arguments of counsel.

(5) The trial Judge must summarise the evidence to the extent required to fulfill the first four requirements and otherwise ensure a fair trial of the accused.

[66] Acknowledging that requirements (3) and (4) were, at least in relation to the accused's position, essentially the same, the applicant argued that each of requirements (2), (3), (4) and (5) were not met by the trial Judge in this case and were 'substantially not met'.

[67] Although the applicant's argument sounds like a submission that, in every case, if each of the five 'essential' requirements referred to is not met, there will be a fundamental error and, consequently, a substantial miscarriage of justice, the applicant eschewed such a position, accepting that what is required may vary from case to case and that the overarching requirement is that the jury must be provided with sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.

[69] Section 364(1) of the Criminal Code provides that after the evidence in a trial has concluded and counsel have addressed the jury, it is the duty of the Court to instruct the jury as to the law applicable to the case with such observations upon the evidence as the court thinks fit to make.

[70] In Domican v The Queen,[7] the majority of the High Court observed (at 560-561) that in a criminal trial, there is a fundamental distinction between directions on matters of law and directions on matters of fact or argument. A trial Judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case and a mis-direction or non-direction on such a matter will usually mean that the trial has miscarried. A trial Judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure to do so does not mean that there has been a miscarriage of justice. The requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.

Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.

[72] In RPS v The Queen,[8] the plurality of the High Court said (at [41]-[43]) that the fundamental task of a trial Judge is to ensure a fair trial of the accused. That will require the Judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. That will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any statutory provision, it will require the Judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases, it will require the Judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. But none of that must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. While a trial Judge may comment on factual issues, they are not bound to do so except to the extent that the Judge's other functions require it. Their Honours said that:

Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

[73] Further, to attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties.

[74] In Mogg v The Queen,[9] McMurdo P (Wilson J agreeing) observed (at [54]) that the onerous duties of a trial Judge will ordinarily include identifying the issues, relating the issues to the relevant law and the facts of the case and outlining the main arguments of counsel.

[75] That appears to be the source of the applicant's submission that it is an essential requirement of a fair trial that the trial Judge must relate the law to the facts of the case. In that case, the summing extended to 113 pages of transcript and took in excess of three hours. Brief directions were given as to the law, but no reference was made to how the law applied to the facts of the case, and the next 89 pages of the transcript recorded a precis by the Judge of the evidence given by each witness in the case. The trial Judge referred to neither the defence nor the prosecution case and gave a very brief direction as to the defence of provocation but failed to identify for the jury the evidence of the provocative conduct and its effect upon the appellant and his particular attribute of youth.

[76] Thomas JA (Wilson J agreeing) noted (at [71]-[72]) that a trial Judge's duty will rarely if ever be discharged by presenting in effect an abstract lecture upon legal principles followed by a summary of the evidence and it is of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them.[10] Further (at [73]), the consensus of long-standing authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken, and the statements from RPS referred to above, which encourage reticence in making comments on the facts, were not contrary to that view.[11]

[77] It has been held that, taking account of the circumstances of a trial, a Judge may be entitled to form the opinion that a summary of the evidence is unnecessary.[12]

[78] It has also been held that the precise nature of the task of the trial Judge depends on many things, including the context of the trial, its length, its complexity, the way it has been run, the issues that arise and, importantly, whether counsel seek more from the Judge than that which has been provided.[13] Further, it has been held that: (a) in fulfilling the duty to ensure the accused has a fair trial, the Judge will derive important assistance from counsel; (b) counsel at trial are well placed to determine whether, in the light of the way in which the case has been run, particular directions to the jury are defective; and (c) a failure to raise objections at the close of the Judge's summing up is usually a reasonably reliable indicator of its fairness and accuracy.[14]

[79] It has also been observed that the trial Judge, with the assistance of counsel, is well placed to assess the difficulties of any evidentiary or legal issues that have arisen, to consider the apparent comprehension of the jury (always evident to those present), and to decide what is required to assist the jury in its deliberations, without needlessly repeating evidence and submissions to a jury who has heard both.[15] Further, it is both contemptuous of the ordinary intelligence of those who serve on the jury, and unduly wasteful of the resources of the courts, for trial Judges to add a lengthy summing up to what may have been a short trial.[16]

[80] The same has been said when the summing up 'has followed hard on the heels of a defence address', namely that very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in the closing addresses as to so require would be to credit the jury with little in the way of intelligence and common sense.[17] It has been said that to suggest that in every case, regardless of its length or complexity, the trial Judge must identify and repeat the points made by defence counsel, and the relevant evidence, is to go too far.[18]

[81] In Flash v The Queen, Grant CJ and Southwood J held (at [3]-[4]) that there is no inflexible rule as to how much of the submissions of each party must be summarised by the trial Judge in summing up. What is required depends on the circumstances of each case, as will the extent to which the evidence is summarised or otherwise put to the jury. All that is required is a fair exposition of how the Crown says that each element of the offence is established, and how the defence contends that disputed elements of the Crown case have not been established. Further, the law must be given to the jury with reference to the facts of the particular case and an explanation of how it applies to those facts.

[82] We do not understand these observations in Flash to be contrary to the authorities just referred to.

[83] This was not a long trial. The opening addresses, evidence and closing addresses took six days.

[84] Nor was it a trial involving substantial legal complexity. To determine Count 1 in relation to the applicant, the jury only had to decide whether:

(a) MG was guilty of the offence of murder, which turned only on whether he had the requisite intent of killing or causing serious harm to the deceased, taking into account his level of intoxication; and

(b) via 'pathway 1': the applicant aided or abetted MG in murdering the deceased, which turned only on whether:

(i) the applicant's presence and conduct at the time MG stabbed the deceased assisted or encouraged MG to murder the deceased; and

(ii) the applicant intended that his presence and conduct would assist or encourage MG in the commission of:

1. the offence of murder; or
2. some other offence, whilst being reckless about MG murdering the deceased; or

(c) via 'pathway 2':

(i) the applicant and MG entered into an agreement to commit an offence; and

(ii) the agreement was to kill or cause serious harm to the deceased (it not being disputed that MG did kill the deceased); or

(iii) the applicant was reckless about MG murdering the deceased in the course of carrying out the agreement to commit some other offence.

[85] The trial was unusual in that the evidence called by the Crown was almost entirely undisputed by the applicant. His counsel cross-examined only two of the Crown's 16 witnesses and did not cross-examine MG or the other witness he called. The applicant did not call or give evidence.

[86] Most unusually in this case, the conduct of both the applicant and MG that led to the deceased's death was entirely caught on CCTV from two different angles, spanning a little over one minute.

[87] Opening and closing addresses of both prosecution and defence were brief and focussed on the critical issues and the evidence relating thereto. The applicant's trial counsel expressly eschewed the need to take the jury to the transcript of the evidence of the witnesses because the evidence was 'all fresh in their minds'. As he put it, the single crucial point in his case was whether the applicant and MG acted jointly, or whether MG had stabbed the deceased without warning on a frolic of his own.

[88] On this application, the applicant acknowledged that the trial Judge had adequately and properly instructed the jury as to so much of the law as they needed to know in order to dispose of the issues in the case. The applicant complained that the trial Judge had not adequately related the law to the facts of the case. In particular, the applicant complained that the trial Judge did not describe the applicant's conduct at the scene or the competing arguments as to what inferences to draw from that conduct. Nor did his Honour describe the applicant's other conduct (ie, before arriving at, and after leaving, the scene) or the competing arguments as to what inferences the jury might draw from that.

[89] In this case, the application of the law to the largely undisputed facts was not complicated.[19]

[90] Whether the jury could reason to guilt on pathway 1 turned, self-evidently, on the conduct of the applicant and MG at the scene, all of which was caught on CCTV. Guilt on pathway 1 also turned on the applicant's state of mind, which was to be inferred from his conduct at the scene and, to a degree, his conduct in the time before and after the stabbing.

[91] Whether the jury could reason to guilt on pathway 2 turned, given the lack of any direct evidence of a verbal agreement between the applicant and MG prior to the offending, on the conduct of the applicant and MG at the scene, and before and after the stabbing. Again, their conduct at the scene was depicted on the CCTV footage, and the applicant's state of mind was to be inferred from his conduct at the scene and his conduct in the time before and after the stabbing.

[92] It was unnecessary for the trial Judge to describe for the jury what could be seen on that footage. What could be seen, and the inferences to be drawn from that evidence, was a matter for the jury. As the High Court observed in RPS, the requirement to give proper instructions to the jury must not be permitted to obscure the division of functions between judge and jury, and it is for the latter to decide the facts.

[93] Both CW and MG gave evidence about what occurred before and after the stabbing. The applicant complained that the trial Judge did not summarise or refer to their evidence, which was said to be very important in the defence case, nor did the trial Judge refer to counsel's arguments about their evidence.

[94] CW's evidence included that when she put her child in the Hyundai to drive MG and the applicant to a house in Karama, she did not notice that they had anything with them; she could not recall the topics of conversation between the applicant and MG on the drive; both of them directed her to drop them off in the car park; when she did so, she did not notice anything in their hands; when MG got back into the Hyundai after the stabbing, she did not notice anything in his hands; she did not see any knives in the Hyundai; she did not see the glove box opened; when MG got back in the Hyundai, he said he had stabbed someone; she did not recall any of the conversation between the applicant and MG in the Hyundai on the drive to drop MG off; when the applicant and MG got out of the Hyundai in the car park, she thought there was going to be a fist fight by the way they got out; when she and the applicant got back to the caravan park, the applicant told her twice that everything was going to be okay; she agreed she had not been frank with the jury and had not told them all the things she could remember about that night; she had initially told Police she had not gone anywhere that night, and had lied because she was scared; she denied knowing the applicant had taken knives from the cabin and that she had seen them; she denied withholding evidence to protect the applicant and denied seeing him put the knives in the glove box when he got back into the Hyundai.

[95] In cross-examination by the applicant's counsel, CW said that when they were back in the cabin, the applicant had told her he was sorry and did not know what was going to happen; she did not initially have any concerns when driving that there was going to be any trouble; there was no suggestion they were going to stab anyone or commit any sort of offence and she would not have taken her child if she knew that was going to happen; she then thought there was going to be a fist fight or an argument, but she was not sure what would happen; back at the cabin, the applicant was upset and in shock.

[96] Aside from the lack of any direct evidence of a verbal agreement between the applicant and MG to murder the deceased or commit some other offence, it is plain that much of CW's evidence was of little assistance to the applicant. It is also plain that there were issues with her credibility. Those parts of her evidence that assisted the applicant's case were identified in his counsel's closing address. A fair summary of her evidence by the trial Judge would have included reference to those parts of her evidence which damaged her credibility and thus impacted negatively upon the applicant's case. That indicates a legitimate forensic reason for the applicant's counsel not to ask the trial Judge to summarise her evidence or otherwise deal with it. That tells against a conclusion that there was a miscarriage of justice.[20]

[97] MG's evidence included that he had been drinking and taking drugs earlier in the day, by the evening he was 'pretty smashed' and he and the applicant kept drinking; he asked the applicant to go to his cousin's house in Karama to get some ICE and after this question he 'blacked out; the next thing he remembered was the applicant telling him everything was going to be alright and him saying he was sorry and did not mean for that to happen; he did not remember anything before being dropped off; about the stabbing he said he did not know what he meant to do, did not remember the stabbing but knew he had done it and said sorry; there was no cause behind what happened; he denied telling lies and had told what he remembered; he denied lying when he said he had told the applicant that he did not mean for it to happen; he agreed when he said that, he knew what he had done; based on the CCTV footage of the stabbing, he agreed he had a knife in his hand when he got out of the Hyundai; based on the CCTV footage, he agreed that both he and the applicant stepping forward simultaneously could have been a calculated movement by both, but maintained he did not remember the incident; he agreed that after the stabbing he ran after the deceased trying to stab him again; he was shocked to find out that he had killed someone; he agreed that he initially told Police he had not done anything at Karama, but an hour later told them he had no memory of it; he made that denial because he had no memory; he denied that he and the applicant had arranged to get out of the car and stab the people there, saying he did not remember anything like that; he denied he was lying about his lack of memory.

[98] MG's evidence was essentially that he could not remember anything about the incident or from the time he asked to go to Karama to the time he told the applicant he was sorry and did not mean for that to happen. Consequentially, his denial of any verbal agreement between he and the applicant had no weight. There were also issues with MG's credibility. The only evidence of any real assistance to the applicant's case was MG's evidence that, after the incident, he said he was sorry and did not mean for that to happen. That part of his evidence was identified in his counsel's closing address. A fair summary of his evidence by the trial Judge would have included reference to those parts of his evidence which damaged his credibility and those parts of his evidence which damaged the applicant's case, such as his concession that he and the applicant's movements could have been calculated. Again, that indicates a legitimate forensic reason for the applicant's counsel not to ask the trial Judge to summarise his evidence or otherwise deal with it. That tells against a conclusion that there was a miscarriage of justice.[21]

[99] The applicant further complained that the trial Judge did not summarise or refer to the evidence of SS. The pertinent part of SS's evidence was to the effect that he did not perceive the applicant as threatening or sense that something was going to happen. SS's perception of the applicant's and MG's conduct as they approached the group could only have been founded upon his observations of their conduct (actions and words) at the scene. Those actions, but not the words, were depicted in the CCTV footage. There was no dispute about what was said by the applicant to SS. It is difficult to see how SS's perceptions of and expectations from that brief initial interaction bear significantly upon the issues the jury was called upon to decide, particularly the critical issue of whether the applicant's presence aided and abetted MG or whether there was an agreement between them, and the states of mind of each of them.

[100] The applicant further complained that the trial Judge did not instruct the jury about how a finding against or in favour of the applicant on count 2 might bear on the issues they needed to consider in relation to count 1. It was said that if the jury were not satisfied that the applicant was holding a knife when he swung at SS, that would necessarily impact the jury's findings about whether the applicant was acting jointly with MG. Again, that was a matter both parties referred to in their closing addresses.

[101] The applicant further complained that in summing up, the trial Judge told the jury five times something the Crown said they could infer from the applicant's and/or MG's conduct, but did not mention what the defence said should be inferred or why the Crown's inference should not be inferred. We do not find this suggested unevenness to be particularly helpful. It is to be expected that such a count would favour references to the Crown because it is for the Crown to prove the inferences comprising elements of the charged offences. The references which the trial Judge did make were not references in which his Honour put the submissions of the prosecutor as to how the jury could draw the inferences. They were simply references to the necessary inferences the Crown had to prove as part establishing the elements of its case.

[102] Nor was the comparison between the way the trial Judge dealt with the critical issue in the case against MG and the way his Honour dealt with the critical issues in the case against the applicant. The cases were different. MG's case involved expert evidence and the issue of intoxication and how, legally, it can bear on the element of intent. MG gave evidence himself. As the Court observed in Aravena (at [105]), whether or not a party's case has been adequately put to the jury is not to be assessed by direct comparison with the attention given by the trial Judge in their summary of the case brought by the opposing party. The same can be said about the summary of the case brought by a co-accused.

[103] Finally, we take into account the failure of any counsel when given the opportunity to seek the instructions from the trial Judge now said to be lacking as a reliable indicator of the fairness and accuracy of the summing up in the context of the circumstances of the trial.

[104] The trial Judge's summing up did not comprise an abstract lecture on legal principles or an explanation of the law in general terms leaving it to the jury to apply the law to the case before them. There was a concise but adequate explanation of the issues in the trial and the law, and it would have been abundantly clear to the jury from that, and the concise and pointed closing addresses given only the afternoon before how the law and the issues related to the facts and the evidence in the case. A reiteration of the evidence or of the points made by counsel in the closing addresses was, in the circumstances of this trial, unnecessary.

[105] On balance, in all the circumstances of this rather unusual case, we are not satisfied that the matters identified by the applicant as lacking were necessary to ensure that the jurors had sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.

[106] Consequently, we are not satisfied that there was an error or irregularity in the trial which gave rise to a miscarriage of justice, let alone a fundamental error or irregularity which gave rise to a substantial miscarriage of justice.

[107] The proposed ground of appeal is not made out.

[108] Leave to appeal in respect of the proposed ground of appeal and an extension of time to seek leave to appeal are granted.

[1] See Kerridge v The King [2025] NTCCA 6 ('Kerridge') at [30]-[31] per Southwood, Brownhill JJ and Riley AJ, citing Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 ('Brawn') at [9]-[10].

[2] Kerridge at [26], citing MDP v The King [2025] HCA 24 ('MDP') at [106] per Gleeson, Jagot and Beech-Jones JJ, adopted at [3] by Gageler CJ, at [9] by Gordon and Steward JJ and at [44] by Edelman J.

[3] Kerridge at [25], citing MDP at [105]-[106], referring to Brawn at [9], which in turn cited Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373; Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at [35]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [46]; Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 at [123]; Hoang v The Queen [2022] HCA 14; (2022) 276 CLR 252 at [42]; Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [44].

[4] Kerridge at [31], citing Brawn at [10].

[7] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.

[8] RPS v The Queen (2000) 199 CLR 620.

[9] Mogg v The Queen [2000] QCA 244; (2000) 112 A Crim R 417.

[10] Citing Holland v The Queen (1993) 68 A Crim R 176 at 183-184 per Mason CJ, Brennan, Deane and Toohey JJ, and Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ. See also Fingleton v The Queen (2005) 227 CLR 166 at [77] per McHugh J.

[11] These observations were cited with approval by this Court in Spencer v The Queen [2003] NTCCA 1; (2003) 137 A Crim R 444 at [21] per Mildren and Bailey JJ and Priestly AJ.

[12] The Queen v DH [2000] NSWCCA 360 at [82] per Stein JA (Smart and Ireland AJJ agreeing).

[13] The Queen v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90] per Ipp JA (Buddin and Shaw JJ agreeing). See also Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 10 per Gibbs CJ (Wilson and Dawson JJ agreeing); Aravena v The Queen [2015] NSWCCA 288; (2015) 91 NSWLR 258 at 272-274 per the Court.

[15] Aravena v The Queen [2015] NSWCCA 288; (2015) 91 NSWLR 258 at [113] per the Court.

[17] Trevascus v The Queen [2021] NSWCCA 104; (2021) 104 NSWLR 571 at [83] per Bellew J (Hoeben CJ at CL and Hidden AJ agreeing).

[19] MLB v The Queen (2010) NTLR 198 at [65] per the Court.

[20] ER v The King [2024] NTCCA 11 at [27] per Brownhill, Huntingford and Reeves JJ.