James v R

Background

1. The deceased (who was 41 years of age at the time of his death) and the applicant had shared a duplex together at an address in Doonside ("the Doonside premises"). The applicant moved into the premises shortly after the deceased's birthday in May 2010.
2. Evidence called by the Crown from a number of witnesses established that the relationship between the applicant and the deceased had been, at times, a volatile one. However, with the exception of some relatively minor assaults, there was no evidence of any violent assaults having occurred which resulted in very serious physical harm to either one of them. Members of the deceased's family and other witnesses gave evidence to the effect that they had seen marks, bruises or other signs on the deceased which on the basis of hearsay evidence was attributed to him having been struck by the applicant.
3. The deceased had a drug taking habit up to the time of his death. There was evidence of him having ingested prohibited drugs on the day of his death. The applicant had also consumed drugs from time to time.
4. There were no witnesses to the stabbing of the deceased by the accused on 26 May 2011, which occurred at the Doonside premises. The applicant when interviewed admitted to police, and gave a history to hospital personnel after the stabbing incident, of having stabbed the deceased.
5. His defence at trial was one of self-defence. No other defence was raised. As discussed below, the alternative of manslaughter was left to the jury on two specific bases.

Relationship Evidence

1. The applicant's written submissions contained a summary of the evidence constituting the Crown case, including the evidence as to "relationship" of a number of witnesses to whom I have referred above. The latter was in the nature of background and context evidence of the relationship between the deceased and the applicant which included instances of domestic violence and arguments. Some of the evidence indicated an ambivalent and in certain respects a contradictory attitude by the deceased towards the applicant. Despite the turbulent relationship, with instances of assault said to have been committed by the applicant, there was evidence that the deceased still professed love for him.
2. The deceased's sister, Bella Winikerei and her partner were living in the abovementioned Doonside premises with the deceased when the applicant (who she referred to in evidence as "Tony") moved in. Ms Winikerei said when the applicant moved in he brought with him, along with other possessions, a knife with a brown handle: T 81. She described it as in the shape of a machete "but a smaller version": T 81. Sometime later she said she saw it in the kitchen. She drew a sketch of it which was admitted at the trial (Exhibit B).
3. During the period she lived in the Doonside premises up until October 2010, she said she heard the deceased, Dale, and Tony arguing at times. She said on those occasions Tony would be swearing at Dale in an abusive manner and in an angry voice: T 82. When asked "Did Tony tell you anything about these arguments with Dale?" she answered "He just said he loves him": T 83.
4. She said that after she moved out of the Doonside premises she lived close by and would see the deceased most days. In November 2010 she said she saw that he had scratches and bruises to his face on one occasion: T 84. She said the deceased said "Tony did it" referring to those marks. He was crying. She said he was sore, in pain: T 84.
5. Later in the same year, she said she saw her brother, the deceased, on an occasion on which he said to her that he was in pain. She lifted his shirt and said "he was bruised": T 85. There was a bruise on his back which looked like a welt. She described it as big and black: T 85. She said that he told her Tony had hit him: T 83. She said she saw an injury, a bruise, on his chest.
6. She said there was another occasion when her brother had burns on his arms and his hands: T 86. She said that he told her "Tony put a cigarette out on me": T 86.
7. Ms Winikerei gave evidence about a cocktail party in 2011. She said that her brother left the party at about 2:20am and returned at about 3:30am. She asked what he was doing coming back. He said: "The f'ing C chased me down the road with a knife out of my own home": T 87.
8. She said about a week before Tony's birthday in May 2011, he said he had given Tony seven days to move out: T 88.
9. Eileen Winikerei, the niece of the deceased, gave evidence that the deceased had told her that Tony was a black belt and that he was scared of him: T 99. She referred to the events of the same cocktail party in 2011 described by her mother, Bella Winikerei. The cocktail party was at her house and was to celebrate her birthday. She gave evidence that the deceased had been at the party and had left before returning in the early hours of the next morning and that he was 'crying and hysterical' and had said that 'Tony had chased him out of his own home with a knife': T 100.
10. She gave evidence that the next day she, her mother and a friend had gone to the deceased's house and her mother had told the accused to 'get out': T 101. She said that the deceased had told her that he was scared of the accused 'because if there was no food or no sugar and coffee and stuff he would cop it from him': T 102.
11. Ms Winikerei gave evidence that on 22 May 2011 the deceased went to her house and showed her bruising on his back in a diagonal line which she indicated was about 20cm long: T 102. She said the deceased told her the accused had 'struck him with something' and that he was crying at the time: T 103. She said in cross-examination that she had never seen the accused injure the deceased: T 104.
12. Sandra Crawford lived in the same street as the Doonside premises and she knew the deceased. She said that for a couple of months (later changed to four or five months: T 111) after the applicant moved in with the deceased "they were very happy" and then things went downhill: T 110.
13. She said on one occasion she saw the deceased crying. He would tell her how Tony used to abuse him and physically hurt him: T 111. He told her of an occasion when Tony held a knife to the deceased's throat and threatened to cut his throat: T 111.
14. She gave evidence of an occasion when she saw Tony with a bed slat. He went to hit the deceased once, which missed, but she said she saw he hit him a second and third time, on his back: T 112.
15. A few minutes later she saw the deceased, Dale, walk past with a pole in his hands, but he did not do anything with it. He was crying. She rang the police. She said it took seven hours for the police to come. In the meantime Dale asked her to "cancel" the police but she refused: T 113. She said Dale showed her his back - a deep imprint was on his back "where you could see it got him twice"; a reference to the bed slat: T 114.
16. She last saw the deceased at about 5:00pm on 26 May 2011. He mentioned "how he told Tony that he had to be out by Tuesday": T 115.
17. Mr Peter Rofe lived about 30 metres away from the house where "Dale and Tony" lived: T 121. As at 2011 he had known Tony for about five years.
18. He gave evidence that on about 20 May 2011, he saw the applicant working on his van next door to his place. He saw Dale approach him. Dale was yelling and screaming. He said he saw them arguing. Dale said something to the effect of "I want you out of my house, I want you to leave": T 122. He said Tony was not aggressive "he was just dodging him. Dale had a piece of wood ... At one stage he pursued Tony and they ran around the van twice": T 122-3. Dale threw the stick at Tony but he did not hit anyone: T 123. He said that Dale then walked back away.
19. Mr Rofe said he saw Tony the day Dale died. The last time he saw him was about 2:30 to 3:00pm that day: T 124.
20. In cross-examination, he agreed he told police the applicant appeared to be normal, nothing out of the ordinary: T 128. He told them he was in good spirits and had been doing manual work on his car: T 128.
21. Ms Julie Pardey gave evidence that at 3:00pm on 24 May 2011 she was driving home when she saw a male running, chased by another male who was holding a machete in his right hand level with his head: T 142-3.
22. She described the male who was being chased as medium to solid build wearing a turquoise jacket and long pants. She said "he was running for his life": T 143. The male who was chasing was described by her as being medium build wearing a dark top and jeans. He had a ponytail. She had seen this male before saying that he often tied his hair in a ponytail. It was contended at trial by counsel for the applicant that the person who was chasing the other person was the deceased.
23. Ms Gloria Anderson, sister of the deceased, lived ten minutes away by car from him. She said some time after the applicant moved in with Dale she visited Dale and noticed a bruise on his arm. He told her he had got hurt but said nothing about how it happened: T 61.
24. Ms Anderson stated that on an occasion after Bella and her partner moved out of the Doonside premises, Dale went to Bella's house and showed them bruising on his body - on his back, left side and ribs: T 61. He had a scratch down the left side. He had trouble breathing. He could not sit down properly. She said "He told us that Tony belted him": T 61.
25. On the night of Eileen Winikerei's birthday, in March 2011, there was a cocktail party. Dale had left the party and returned. She said "he said Tony told him to fuck off out of his house; it was his house and chased him down the street with a knife": T 62. She said Dale appeared agitated, scared, angry: T 62.
26. Between the cocktail party and 2 May 2011 she said Dale lost weight. In that period she also said Dale had bruising, that "he had been hurt from Tony" - he told her he loved Tony. She added "… and I believe he did love Tony because he would do anything for Tony": T 63.
27. Ms Anderson stated that on 2 May 2011 she and her sister Bella had been standing outside the Doonside premises when she heard Tony say to the deceased, "You're a dog". She said he sounded "Really angry at Dale": T 64.
28. In relation to an incident on 25 May 2011, she said she went to the deceased's place in the afternoon and she said that as she hugged him he lent away and she said "What's the matter?". She said that the deceased told her that he had been "beaten with a 4 x 2". He said that the applicant had done it: T 64. She said she saw a massive bruise on his back and that the deceased said his ribs were "really sore": T 64.
29. In the course of her evidence she also stated that she recalled an occasion when the applicant said that he had a black belt in karate: T 63.
30. In cross-examination she stated that she understood her brother, the deceased, had suffered from paranoid schizophrenia and from depression: T 65. However, as at the date of his death he was not being medicated for those conditions: T 65.
31. Ms Anderson also stated that in the months leading up to his death she became aware that the deceased had been using drugs and that he had had a previous problem with prescription drugs: T 66. The latter problems had resolved.
32. Ms Anderson said that she understood that the deceased was using "harder drugs" around the time of his death: T 66. This was based upon what others had told her and also she said that she had found syringes in his house both before and after his death: T 66.
33. As to the deceased's condition before his death, she said that he was not looking after himself and she thought that he might sell household items to pay for drugs: T 66.
34. She agreed in cross-examination that she never saw the applicant physically mistreat her brother: T 67.
35. Kirralee Howley, daughter of Ms Pardy, gave evidence of an incident she said she saw on 24 May 2011. She was then driving her mother and others home from the IGA Supermarket. As she approached a vacant lot of land she saw a man being chased by another man. The man who was doing the chasing was holding a samurai sword over his head. She said the blade was "pretty long": T 148. She said the person being chased was "a bigger boy sort of thing": T 149. She described that person as 160-170cm tall, similar to her own weight with fair skin and very short light brown hair, wearing a grey jumper. She said she had seen him around before: T 149-150.
36. Ms Howley described the man with the samurai sword as being 170-180cm tall, of very skinny build, with tan coloured skin and black hair in a ponytail, which she referred to as a "piggytail": T 150. She said she had seen this man a number of times in the street: T 150.
37. Ms Hediye Sonmez gave evidence. She was a resident of Doonside. She had seen the deceased, who was a neighbour. She described him as slim, approximately 5 foot 8 inches in height with long brown curly hair to his shoulders and olive skin: T 151. She said he was clean shaven and had brown eyes and she believed that he was from New Zealand.
38. She also saw another male who was living at the Doonside premises about whom she gave evidence. She had seen that there had been a yellow combi-type van regularly parked in the driveway of the house where he and the deceased lived: T 152.
39. She found out through a neighbour that this man was named Tony. She described him as of medium build, with light brown hair, and blue-green eyes but was not sure as to whether he was a little taller than the deceased: T 152.
40. In March 2011, she had been sitting out the front of her house with a neighbour, Sam Crawford, when the deceased walked past. That was the first day she actually met him: T 152.
41. In about the middle of April 2011 at 11:30pm she was out the front of her home having a cigarette and saw the deceased in the street. She said he looked as though he was hurt or maybe drunk. She thought that because he was "all over the place": T 153
42. She said he appeared unsteady on his feet and looked as though he was in pain, and was making groaning sounds: T 153.
43. She said that one Friday afternoon the deceased came up to the letterbox of her place and "lifted up his shirt and said look at my back because we had just been fighting or something": T 153.
44. She said that he said that "we just had a fight". She said this occurred with the person he was living with and he mentioned his name, "Tony": T 153. Ms Sonmez later agreed that this was likely to have been Friday, 20 May 2011, one week before the deceased's death.
45. She described what she saw when the deceased lifted up his shirt. She said it looked red and bruised and that there were "bits of blood on the back": T 154.
46. In cross-examination she agreed that on the occasion when she was in the front of the house with her neighbour in March 2011, and the deceased had walked past, she told police that Sam Crawford had invited the deceased up and that was when she was introduced to him. She agreed that in her statement to police she had said that the deceased appeared upset due to not making eye contact with her or Sam. She asked if he was okay. He replied something similar to "Tony keeps going back to his wife". T 155.
47. She further agreed that she told police the deceased had said, "and if he wants to keep going back to his wife I want him to leave me": T 156. She agreed that the deceased said those things in her presence. She agreed that she responded with words to the effect that he should ask Tony to leave as it was his house, that he was not happy or words to that effect. She agreed: T 156.
48. It was put to Ms Sonmez, and she agreed, that she said that the deceased expressed to her feelings that he was "sick of Tony not treating him like a partner in a relationship because he kept on seeing his wife": T 156.
49. She also agreed that the deceased said to her that Tony's wife lived a few streets away: T 156.
50. In relation to the incident in about mid-April 2011 at about 11:30pm when she said she saw the deceased unsteady on his feet and groaning, she said that about a week later she spoke to the deceased about it and he told her that he had been mugged: T 157. She agreed that he said he had been walking down Kildare Road in Doonside with a backpack and had been mugged by a number of men in a car: T 157. He told her that they had bashed him and took his bag: T 157-8.
51. A statement of Raylene Gregg dated 27 May 2011 was read to the jury during the trial. Ms Gregg gave evidence that she lived in the same street as the deceased. She had seen a man living at the deceased's address who she described as between 40-50 years old, of small build and with dark skin and dark hair worn in a ponytail. She gave evidence that about two weeks prior to the date of her statement she saw this man chasing a yellow ute, 'yelling words fast and loudly.' She could not see who was driving the yellow ute: T 163.
52. She also gave evidence that on 26 May 2011 she witnessed what she believed to be two males having a heated conversation in the front yard of the deceased's address though she could not identify the men: T 164.
53. A statement of Constable Alan Franklin was read to the jury. Constable Franklin had attended the deceased's residence on 20 May 2011 at around 7:56pm in response to a call. He said that he spoke to a male who he now knows to have been the deceased. The deceased told him that he "had an argument with his friend that resulted in his friend hitting him on the back and then chasing him down the street…Lomas refused to reveal the identity of his friend and denied having any fears for his safety": T 165. He gave evidence that he told the deceased to contact the police again if his friend returned or if he had any problems, to which the deceased replied "Everything's fine, don't worry about it": T 166.

Evidence as to the Events of 26 May 2011

1. The statement of Michael McCluskey dated 3 June 2011 (MFI 9) was read to the jury: T 172. Mr McCluskey had known the deceased for about ten years and had known the applicant for about twenty years. He described the deceased as being a "Kiwi with long black hair". The applicant was said to have had short hair and a fair complexion. He said that he had not seen the applicant being violent in his presence, nor had the seen the deceased being violent. He said, "They were just argumentative with each other."
2. On Thursday, 26 May 2011, he said he met the deceased in Blacktown. He said this was for the specific reason of talking about whether Tony "was going to move out of the deceased's place and whether he was still going to move in": at [5].
3. They returned to the deceased's home where he said the deceased had "a bag of speed". He said that the deceased mixed his "speed" up in the bag and he went and injected himself in the bathroom. He said that they had "a couple of cones of pot".
4. About fifteen minutes after the deceased and he took the speed the applicant came out of his room and there was a conversation about McCluskey saying to the applicant that he would have kept some speed for him had he known he was in the house. He said he could see that the applicant was angry about not getting any of the speed: at [8].
5. McCluskey said that he knew that the deceased had told the applicant about three weeks before that the applicant "had to go". He said that the deceased had previously told him about the applicant "giving him a clip across the earhole": at [9]. He said that the deceased wanted the applicant to go "… as quick as possible because Tony wasn't paying any rent and was spending all his money on drugs ...": at [9].
6. He said that after the applicant came out of his room on 26 May 2011, the applicant and the deceased were arguing continuously while he was there: at [10].
7. Later that day he said goodbye to the deceased and the applicant and heard the deceased saying to the applicant "you've got to go you're not paying your way": at [14].
8. Mr Vora, who was working for a sales and marketing company that worked on behalf of AGL, gave evidence of visiting various residents in Doonside on 26 May 2011. At 5:15pm on 26 May 2011, he went to the residence of the deceased and the applicant: T 174.
9. He spoke to the deceased. He gave a description of the deceased at that time: T 175.
10. Mr Vora's evidence was firstly relevant to the deceased's cognitive condition in the period immediately prior to him being stabbed by the applicant. On the evidence, the stabbing incident occurred not long after Mr Vora left the deceased. His evidence was that he left two or three minutes after 5:57pm. The Crown in their closing address put the time as being slightly after 6:00pm. Mr Vora's evidence was also, in part, relevant to a question as to whether the deceased had ingested drugs with two males during the afternoon of 26 May 2011 (in addition to drugs ingested earlier that day.)
11. Conversation turned to the question of a discount being available and Mr Vora commenced filling out some paperwork whilst he was outside the house. The deceased said that he had gone to find his wallet but had lost it and that all he had was his bank keycard. He showed the keycard to Mr Vora: T 176. Mr Vora said at that time he did not notice any injuries or anything unusual about the deceased.
12. At the time of filling out the paperwork Mr Vora saw two other men at the house: T 177. Mr Vora said he made a verification call which involved somebody from Mr Vora's company talking to the customer to verify details. The first of two verification calls ended at 5:36pm. The recording of the calls were played in court: T 178.
13. After the call was terminated at 5:36pm Mr Vora said he spoke to the deceased who said "I used to live at my sister's for four years and I am the one who pays the bills for that property, so can you set up a discount thing?": T 178.
14. Mr Vora asked him for the address and he gave an address in Castle Hill. He did not have a postcode so the deceased said that he would go inside and look in the Yellow Pages. He then went inside. About three or four minutes later he came out and told him the postcode. Mr Vora then completed the second contract and a communication form: T 179.
15. He said the deceased signed the documents. Mr Vora then made the second verification call. The deceased also spoke to the operator during the second call: T 179.
16. Mr Vora said that before he left the deceased, the deceased said to him "do you smoke?". Mr Vora replied in the affirmative. Mr Vora said the deceased asked "can you give me one cigarette?" Mr Vora said that it was in his car which was parked away. He then left the Doonside premises.
17. The second verification call, played in court, finished at 5:57pm.
18. In cross-examination Mr Vora confirmed that the two other men who he referred to in evidence had been inside the house: T 182.
19. He agreed that one of them said goodbye to the deceased. They then walked outside the gate: T 183.
20. Evidence was given by Eddy Johnson who had been practicing as a Pastor for about 40 years: T 187. He worked in an office in Blacktown. The premises were a community centre.
21. Pastor Johnson said he first met the applicant five or six years before May 2011. He said the applicant had been attending counselling, not with him but with somebody else at the community centre.
22. He said that at about 9:30am on Thursday, 26 May 2011, he was at the Blacktown office. The applicant dropped in to use his phone, apparently for a job application. He remained there for about thirty minutes. He said he appeared "happy, glad, normal": T 188.
23. Pastor Johnson arrived home that night at about 7:00pm and received a call on his mobile phone at about 7:15pm: T 188. He recognised the applicant's voice. He said that he was sobbing. He asked the applicant where he was. He said he found it difficult at first to understand him because the phone was fading. He told the applicant to calm down. The applicant said "please come, please come I need you Pastor Eddy". The phone dropped out and he rang the applicant back. The applicant said he was at Alan Jones' place.
24. Pastor Johnson said that he contacted other members of the support group and made his way to the Doonside premises: T 190.
25. He said that he knocked on the front door calling out to the applicant but there was no answer. He said he looked down the driveway and saw some dark splashes of liquid and recalled saying to the others "this looks like drops of blood". This was about one metre from the front door: T 192.
26. Pastor Johnson said he then saw the applicant out on the road. He approached him and said "What's going on, what's happened Anthony?". He said the applicant was sobbing and was incoherent to some extent. He asked him to tell him what had happened. They moved away from the house and across the road. The applicant said "I want to die, I want to die. Give me a rope, find me a rope": T 192. He asked the applicant what had happened and he said "he came at me with a knife and slashed my arm. So I let go, I think because of the words he used and the wrestling I stopped him": T 192. Mr Johnson said he kept repeating "I want to die, I want to die": T 192.
27. He said he asked the deceased to show him his arm. He said he saw blood on his sleeves and said "Anthony, let me see what's there": T 193. The applicant rolled up his sleeve and he could see a slash on his left arm. When asked whether the applicant said anything about what had happened, Pastor Johnson said that he did not, other than saying "I stabbed him, I stabbed him" but that he appeared very distraught: T 193.
28. When again asked whether the applicant disclosed information as to what had happened, Pastor Johnson said that the applicant said "somehow I got the knife away from him and I took the knife and then I stabbed him": T 196. He was not sure as to what else he said although he said there may have been something like "we struggled a little bit".
29. Pastor Johnson was taken to his statement, at paragraph [12], where he referred to the applicant saying something about a knife and an arm. He was asked, having read the statement, whether there was something said about which he did not give evidence, namely, the applicant saying "I lost it". Pastor Johnson confirmed that he had said those words. Pastor Johnson said that the applicant said the deceased slashed his arm with a knife and "I lost it then, I took the knife and I stabbed him": T 197.

The ERISP

1. Police interviewed the applicant on Thursday, 26 May 2011 at Doonside commencing at 9:10pm. The interview was conducted by Detective Sergeant Bristow. Detective Senior Constable Scott-Mahjet was present.
2. The ERISP dated 26 May 2011 was admitted into evidence and played at the trial.
3. The ERISP took place in a police caged vehicle in the deceased's street approximately three hours after the death. This was relied upon by the applicant as important evidence due to the fact that the recording of the interview revealed the applicant to have been genuinely distraught over the death of the deceased. Relevant extracts of the ERISP are reproduced below. In summary, the applicant's answers to police questions included reference to the following matters:

• The applicant and the deceased had a fight;
• The deceased, according to the applicant, was "going off his head because he (the applicant) was packing up:;
• The applicant said he did not know what to do;
• The applicant said the deceased had been shooting up and he was "drugged up";
• The applicant said he grabbed the knife off the deceased and stabbed him once on the left side of his chest;
• The applicant said "everything was going mental" and the deceased slashed him a couple of times - that he just did not know what to do - "whether to keep letting him slash him or not";
• The applicant said he tried to take the knife but "I just didn't know what to do";
• The applicant said earlier in the afternoon the deceased and other people were in the house taking drugs;
• The applicant told police he didn't think the deceased wanted him to move out;
• When asked what his intention was when he stabbed the deceased, the applicant said he didn't have any intention, and that it was reflex;
• When asked what he was trying to do with the knife, he replied "Just protect myself";
• When asked whether it was his intention to kill, the applicant replied "No way, man".

1. The applicant agreed that he had told the police at the scene "We had a fight": ERISP, p 2, Q.13.
2. At Question 14 he was asked, "Who had a fight?". He answered: "A Me and Dale. He was going off his head because I was packing up and then he um, went off and he had a knife and he slashed me. And I just don't know what to do next so I just, I took it a couple of times." Q15 What did you take a couple of times? A A couple of slashes to me arms. Q16 Yes. A 'Cause I didn't really want to fight, mate. You know what I mean? And then after a couple of times I just didn't know what to do, man. I just, I didn't know what to do. Q17 And what happened from there? A I just stabbed him, stabbed him."
3. A little later he was asked: Q24 Now Anthony, why did this happen? A I don't really know. He was pilled off his, he was drugged up and he was shooting up there this afternoon, and drugged up and just arguing. I was packing up 'cause I wanted to move out. I've been waiting to get out of there. Q25 And why was that? A Because he keeps like putting it on me and stuff like that. Q26 When you say putting it on you what are you referring to? A Like sexual advances and shit like that, mate. Q27 All right. And is he a homosexual? A Yeah, I think so. Q28 All right. Are you? A No. Q29 How many times did you stab Dale, Anthony? A Just once. Q30 … And what did you stab him with? A A knife. Q31 And where did you get that knife from? A I grabbed it off him. Q32 And can you tell me how that took place? A Oh, we were just going everything was just going mental and he slashed me a couple of times and I just didn't know what to do, I just didn't know whether to keep on letting him slash me or not. Q33 Right. A You know what I mean? I tried to take it but I just didn't know what to do. Q34 How many times did he slash you? A Maybe about three or four times."
4. The applicant was asked the following questions and gave the following answers: "Q40 And do you recall what time this happened this evening? A Oh, probably about, I don't know, about three quarters of an hour I'd say before youse come. Q41 All right. And what did you do after it happened? A I come up here to see me neighbour. Q42 And who did you see? A Al. Q43 And has Al got a last name? A Um - - - Q44 Do you know what - - - A - - - Jones. Q45 Jones is it. Do you know what number Al lives at? A [address provided] Q46 And how do you know him? A I've known him for years. Q47 And what did you say to him? A I told him what happened. … Q50 Now what was it that you said to him when you got to his place? A Exactly what I said to you. Q51 And can you repeat for me what that was? A That Dale was going off his head and slashed me a couple of times and I took it a couple of, like I took a couple of slashes because I didn't know what to do. I didn't know whether to respond or just to take it. Q52 Yep. A And then after a couple of times I seen this one was really open. Q53 Yep. A And I thought it was a bit too dangerous to be just copping it. Q54 Yep. A So I grabbed it and stabbed him. Q55 All right. So are you telling me that you were just standing there taking it? A Yeah. Q56 And whereabouts in the house was this happening? A In the lounge room. Q57 O.K. And where did, where did Dale end up? A Fell on to the lounge. Q58 Did he? A (NO AUDIBLE REPLY) Q59 All right. How on the lounge? I haven't seen him so - - - A He just fell back all over the lounge. Q60 All right. Now the, the knife that you used to stab Dale, was that the same knife that he attacked you with? A Yeah. Q61 Where did that come from? A I don't know. Q62 Do you know where Dale got it from? A It was in, it was in the house. Q63 Do you know whereabouts in the house? A No, I wouldn't have a clue, mate. He was going off his head going right through the house, tearing the house up and stuff like that. You know what I mean?"
5. A little later the following questions and answers were recorded: "Q65 Oh, O.K. How long had the two of you been at home together this afternoon and tonight? A Not long. He had other people up there like taking drugs and stuff. So I come down here and just to avoid it, mate. I didn't like the, you know, the situation. Q66 Yep. A So I come down here and did a little bit of work with the boys down here on the car. Q67 And do you know what time that was? A No, I couldn't tell you what time it was, man. Q68 O.K. How long before Dale got stabbed was that? A When we finished doing that I went up and locked meself in the room because there was, you know, he still had a mate and that there. Q69 Do you know who that was? A Um, no, I didn't know the bloke, mate. Q70 O.K. When you went back up to the unit where Dale was, was it daylight or dark? A I think it was just on dark. Q71 All right. So before you stabbed Dale how long had you been back home? A Um, a little bit 'cause I laid in the room and watched a um, video. It was Missing In Action, so, you know - - - Q72 Like a DVD or something was it? A Yeah, just a video. Q73 O.K. All right. A 'Cause I stayed in me room 'cause he was going, I knew he was going off his head and blah, blah, blah and you know what I mean, I knew, I started packing me stuff and that. And um, you know what I mean, I don't think he wanted me to move out. And he was just going off his head, you know, it was more like, it was really hard to read, it was like um, he was jealous that I was moving out or something, man. You know what I'm saying? Q74 All right. A Like - - - Q75 And do you know why that would have been? A I don't know. … Q78 O.K. And when did this problem start between you and Dale today? A When he come home this afternoon in a mood. Q79 You were already there? A Well I was there but I just walked out and come down here and, you know what I mean - - - Q80 What time was that that he come home? A I'm not too sure, mate. Q81 All right. Was it still daylight? A Yeah, yeah. Q82 Yeah. All right. Was it still daylight when you came down to your friends place here? A Yeah, 'cause I worked on the car with them."
6. The applicant was then questioned about the stabbing incident: "Q83 O.K. All right. And can you tell me how it was that you stabbed Dale with the knife? A What do you mean? Q84 How did you do it? A I just grabbed it and went like that. Q85 All right. So you've indicated with your right hand. A Yeah. Q86 Are you right handed or left handed? A Yeah, right handed. Q87 O.K. Did you have the knife in your right hand? A Yep. Q88 All right. And you indicated just then a type of sideways motion. A Yeah, I just, sort of like swung it at him. Q89 O.K. And what was your um, what were you trying to do by doing that? A I didn't really have any intentions to do anything really. Q90 All right. A It was just, it was reflex really. Q91 Yep. A It was just, I don't know, I was scared, I was confused. I didn't know really what to do, man. Q92 All right. A Honestly, I didn't know what to do, mate. Q93 And how were you sort of feeling at the time that you stabbed him with the knife? A Fucken terrible, mate. Q94 And, you right? What was it that you were trying to do with the knife? A Just protect meself. Q95 All right. And how many times did you swing it at him? A Just once."
7. The applicant was then asked the following questions and gave the following answers: "Q103 Yep. O.K. Now what was it that you were trying to do by trying to get him with the knife? A I was just trying to swing it around and like just scare him back. But I think he stepped in or something. He was just going wild, mate. I don't know what really happened, mate, it just went so quick. I just don't know what happened. Q104 Yep. How does he compare in size to you? A We're about the same size I think. Q105 All right. O.K. Now - - - A But mate, he goes right off his head, when he's on pills and shit, mate. When he's on drugs he goes right off his fucken head, mate. He come down here and he attacked me down here the other night and shit like that, mate. Q106 Yep. A He's done it, he's done it a few times, man. Q107 And when he's attacked you before have those matters been reported to the police? A (NO AUDIBLE REPLY) Q108 You're nodding your head from side to side. A No, I didn't worry about it. Q109 O.K. Have you ever reported any attacks by him on you to the police? A There was one incident yup here where he was smashing up some timber. Q110 Yep. A And he was throwing it at me so I picked up a bit of timber and just slapped him on the side. Q111 Oh, O.K. A And he rang the police, but he was throwing shit at me and hit me in the head like, I don't know what it was, mate, he was just throwing all me shit at me and hitting me in the head with like, I think it was a bag of old remotes or something, you know. Q112 Yep. TV remotes and stuff like that. A Yeah. Q113 Yep. All right. What were you intending to do by trying to get him with the knife? A Keeping a distance, get him away. You know what I mean? Like - - - Q114 Were you trying to injure him? A No way, man. Q115 Well if you weren't why would you do that? A I was just trying to like swing it in front of him. Q116 Yep. A But he's gone like that. Q117 Yep. A Like grabbing - - - Q118 You're sort of indicating that he, that he sort of jumped at you with his arms up? A Yeah, he just went like that. And I went … And I just went to swing it like that. Q119 Yep. A And I think I got him in here somewhere. Q120 So it's gone into his side under his left arm has it? A (NO AUDIBLE REPLY) Q121 That's what you're sort of indicating to me. A Yeah. Q122 Yep. All right. A And he just fell back on the lounge and I grabbed him, I grabbed him and I just didn't know what to do for Dale. Q123 Did he say anything to you? A (NO AUDIBLE REPLY) Q124 No. How hard did you stab him with the knife? A It didn't feel hard. Q125 Sorry? A It didn't feel hard. Q126 O.K. Was it your intention to kill him? A No way, man. Q127 I've got to ask you, Anthony. A No way, man. I wouldn't kill no one. Q128 Yep. Was it your intention to injure him? A No. No. Q129 Did he say anything to you after he got stabbed with the knife? A No."
8. On Friday, 27 May 2011 at 2:45am, Detective Senior Constable Harris interviewed Alan Jones. The record of interview became Exhibit M in the proceedings. Mr Jones said that the night before the applicant came to the door and came into his house. He said he looked agitated and upset (A11). In Answer 12 the following was recorded: "I asked him what was the matter. He came and sat down where my shoulders are on this chair, on the lounge, it's a bed really, and sat down here and just rocked around a bit. He was shaking. I said, 'What have you done now?' And he just didn't give me an answer. Then he started crying. And then he got up, went to the kitchen, come back out again and he sat down there and he said, 'I've hurt Dale.' I think it's Dale isn't it? I'm not sure. Dale. I said, 'What did you do?' And I got no answer from him at all. He said, 'I want to ring Pastor', Pastor Eddie."
9. In relation to the relationship between the deceased and the applicant, he was asked: "Q51 O.K. And do you know what relationship that Tony has with Dale? A Well it wasn't very good. Q52 What do you mean by that? A Well every time he come up he said I can't handle this cunt I'm living with. Q53 Yep. A But he was going to go and live with his brother, but apparently that fell through. Q54 Yep. A And after that he was really upset about that. But he said, I've got to move. Well, the end result …. But he was agitated for weeks before, before this happened."
10. Mr Jones was recorded as saying that the applicant indicated to him that he and the deceased did not have a good relationship (Q58) and that he did not get along with the deceased "'cause he used to knock off his cigarettes and all that" (Q59). Additionally, the applicant had said to him a couple of weeks before the incident "If I don't move from this prick something's going to happen between us" (Q 62). He was asked: "Q64 So what, what was that all about a couple of weeks ago? A Oh, it was over money or something."
11. In answer to Question 69 he said that the applicant showed him a cut. He said "He had a really nasty cut".

The Expert Evidence

1. The medical evidence established that the cause of the deceased's death was a single stab wound to the left posterior lateral aspect of the chest. Other injures were noted on the deceased, the most significant of which was a fractured hyoid bone. This was consistent with manual strangulation: Dr Van Vuuren at T 307. In cross-examination, Dr Van Vuuren agreed, however, that she could not rule out the possibility that the injury occurred as a result of squeezing and pushing in a defensive action: T 319.
2. Evidence given by Dr Perl, pharmacologist, was directed at establishing the level of methylamphetamine in the deceased's body and the possibility that this may have caused the deceased to have acted aggressively.
3. Dr Perl gave evidence that a number of substances were found in the deceased's blood including amphetamine, methylamphetamine, clonazepam and delta-9-THC acid (which is commonly found in cannabis). Dr Perl gave evidence that the concentration of methylamphetamine found in the deceased was in the toxic range which would generally mean that the user would experience adverse effects and impairment, but that these effects would vary according to the user's level of tolerance: T 325.
4. Dr Perl gave evidence that the drug must have been used at least two to four hours prior to death because it was partially metabolised. She said that the drug may have also been used at other times during the day: T 326.
5. The effects of the drug on the deceased would have varied, according to Dr Perl, depending upon what time of the day the drug was used. She described two phases of expected effects of methylamphetamine use - the first being excitability, increased alertness, hyperactivity, talkativeness, agitation and paranoia which would occur after use. The second was a phase of withdrawal which would occur as the drug wore off. The effects on the user in this phase would include sleepiness, fatigue and slow movements. The intensity of the experience would depend upon the blood level and the user's level of tolerance: T 326.
6. Dr Perl gave evidence that the deceased, based on his interactions with the AGL representative, did not appear to be grossly impaired: T 330. On the assumption that the deceased had used methylamphetamine around midday, consistent with the statement of Mr McCluskey, Dr Perl gave evidence that he would have been in the withdrawal state. However, there could not be excluded the possibility that there may have been usage of methylamphetamine on more than one occasion during the day. If the deceased had taken a knife to the accused, Dr Perl stated such aggressive behaviour would be consistent with methylamphetamine use: T 339.

Applicant's Submissions

1. Mr Stratton SC, who appeared on behalf of the applicant, submitted that the injuries taken in isolation, especially given that there was only one stab wound, did not establish an intention to either kill or inflict grievous bodily harm. If that were the applicant's intention, the question was posed, 'Why stop at one stab wound?'
2. It was submitted, however, that the injuries to the deceased should not be taken in isolation. They should be considered in the context of the injuries to the applicant, in particular, the injuries depicted in Exhibit F. The wounds to the applicant's left arm, it was contended, could not be taken as superficial wounds and there was no suggestion that they had been self-inflicted.
3. It was submitted that there was no evidence to support the Crown hypothesis put to the jury, namely, that the applicant first attacked the deceased and the deceased then lashed out at him with the knife, before the applicant wrestled the knife off him and stabbed him. A difficulty with that hypothesis, it was submitted, was that, apart from the stab wound, the injuries to the deceased were quite limited.
4. The events all occurred in the lounge room of the Doonside premises where the deceased's body was located and where all of the deceased's blood was located. The applicant's submissions posed the question "If the applicant was [on the Crown case] strangling the deceased in the lounge room, how did the deceased get access to a knife?"
5. It was submitted that taking into account the physical evidence and the pattern of injuries on the applicant and the deceased, the following was the more consistent course of events: "The deceased attacked the applicant with a knife which he had brought with him into the lounge room, probably from the kitchen": (Applicant's Written Submissions at [141])
6. Reference was made to Exhibit A, a photograph that appeared to show a knife block in the kitchen with empty spaces for knives.
7. The submission for the applicant continued: "The deceased inflicted the injuries on the [applicant's] arms as the [applicant] attempted to ward off the blows with his hands and arms. The [applicant] managed to wrestle the knife off him. Taken by surprise, and in what was in effect a life and death struggle, the [applicant] inflicted a single knife wound to the [applicant], which was tragically fatal." (Applicant's Written Submissions at [142])

The Crown Submissions

1. The Crown case at trial was not that the applicant intended to kill the deceased or that the offence was premeditated. It was that the applicant intended to inflict grievous bodily harm.
2. The central issue at trial, the Crown observed, was whether the Crown had established that the act causing the death of the deceased was not done in self-defence.
3. The Crown relied at trial upon the following matters to establish that the applicant must have intended to inflict grievous bodily harm:

• The nature and extent of the injuries received by the deceased;
• The weapon used; and
• The placement of the injury. (Crown Written Submissions at [8])

1. The Crown also relied upon: 1. The relationship evidence between the deceased and the applicant, including the evidence as to the observations of friends and family of injuries said to have been inflicted on the deceased in the past as outlined above at [136]-[188]; 2. The fact that one of the applicant's first accounts after the killing was to tell Pastor Johnson that he "lost it" as part of his explanation for killing the deceased and the fact that the deceased had been trying to get the applicant to move out of the premises for some time to no avail: (Crown Written Submissions at [8])
2. There were, the Crown submitted before this Court, a number of "compelling reasons" why the jury rejected the applicant's account at least in part: (Crown Written Submissions at [9]).
3. The Crown first drew attention to the medical evidence of Dr Van Vuuren that indicated that the track of the wound extended through the left lung to the heart and was about 24 cm deep. This was put to the jury by the Crown as being inconsistent with the applicant simply trying to get the deceased away from him. It was more consistent with an intentional swinging of the knife with an intention to injure the deceased: (Crown Written Submissions at [12].)
4. The Crown, secondly, drew attention to the fracture of the hyoid bone which the evidence indicated would have required "moderate to severe" force to cause. This was consistent with manual strangulation. It was submitted that Dr Van Vuuren had not agreed in cross-examination that the fracture could have been caused by force to the front of the neck in a pushing action, as someone may do if defending themself, but only by squeezing (T 319:12). As noted above, the applicant's submission relied upon evidence of Dr Van Vuuren at T 319 for the contrary proposition, ie, what was said to have been a concession by her that she could not rule out the possibility that the fracture occurred as a result of pushing in a defensive action.
5. It is convenient to refer at this point to the evidence of Dr Vuuren in cross-examination, as follows (T 319:10-21): "Q. Grabbing around the neck first and squeezing and/or pushing, could that explain some of the injuries that you saw? A. The squeezing would more account for the injuries, not the pushing. Q. There could have been squeezing and pushing? A. Yes. Q. And you cannot rule out the possibility that if the injury occurred in the manner I suggested with the arm out and the fingers are under the neck and the hand under the neck, you cannot rule out the possibility that that occurred in a that defensive motion or defensive action, can you? A. No you cannot."
6. The Crown also pointed to evidence as to other injuries suffered by the deceased that were said to be indicative of the use of force by the applicant and consistent with being "defence wounds": (Crown Written Submissions at [14].) These included superficial wounds to the palm of the left hand of the deceased consistent with defence wounds. Reference in this regard was made to Dr Van Vuuren's evidence: "It would indicate that the deceased was grabbing the knife, trying to deflect it from his body": T 308:36-37.
7. It is convenient at this point to extract Dr Van Vuuren's evidence in chief on this point: "Q. Doctor, in your post-mortem examination you also noted what you have referred to as superficial injuries present on the palm of the left hand consistent with self-defence wounds? A. Yes. Q. Are you able to indicate where those superficial injuries were on the left palm of the left hand? A. There was a small cut to the left thumb, and also the left index finger. Q. Doctor, are you able to give an opinion as to whether those superficial injuries you have indicated to the thumb and the index finger, could they have been occasioned at the same time as that stab wound? A. Yes they could be. Q. Why do you say that? A. Well they had a similar appearance like a recent cut, as the stab wound. They appeared to be the same. Q. And considering it was the deceased's left hand, and the wound was to the left back, what do you say about that as being indicative of occurring at the same time as the stab wound? A. it could indicate that the deceased was grabbing the knife trying to deflect it from his body, and then the cuts could appear. Q. But it's also possible they could have occurred at another time, but from what you have seen, and from your experience it's your opinion that they occurred at the same time; is that right? A. Yes, that's correct." (T 308:15-42)
8. In the cross-examination of Dr Van Vuuren on the subject of the left hand injuries the only question put to Dr Van Vuuren was whether she agreed that the wounds to the left palm and left thumb were "superficial": T 313:10-30; 315:1-6.
9. In addition to the left hand, other injuries to the deceased included an injury under the jaw consistent with some force applied to the neck and an abrasion to the nose: T 311. There was also a cut inside the mouth apparently caused by a tooth. These injuries would have required some force according to Dr Van Vuuren: T 312:13. There were cuts above the left eyelid and an abrasion in that area: T 312.
10. As mentioned, the Crown submission was that there was sufficient evidence at trial to establish an intention in the applicant to inflict grievous bodily harm upon the deceased - particularly the moderate to severe amount of force required to cause the fatal stab wound, the nature of the weapon used and the location of the stab wound in the chest: (Crown Written Submissions at [15].)
11. The Crown also submitted that whilst the injury to the hyoid bone and the other injuries were not as significant as the fatal stab wound, they were not consistent with the version given by the applicant in the ERISP: (Crown Written Submissions at [16].)
12. The relationship evidence, the Crown submitted, provided relevant context. The jury had been instructed that they were not to use the evidence as tendency evidence and were given appropriate directions as to its use as context evidence. The Crown referred in summary form to the evidence given by family members and friends: (Crown Written Submissions at [19]-[20].)
13. The Crown also referred to the evidence as to instances relied upon by the applicant as revealing violent conduct by the deceased: (Crown Written Submissions at [21]-[22].)
14. Reference was made to the evidence of Sandra Crawford (T 115) to the effect that that the deceased on the day of the stabbing was angry with the applicant. The Crown noted that this was relied upon by the applicant as undermining the relationship evidence. The Crown submitted, however, that this was consistent with the deceased becoming increasingly frustrated over the fact that the applicant would not move out and his desire for him to do so: (Crown Written Submissions at [24].)
15. The Crown set out in its Written Submissions at [25]-[34] a summary of relevant events after the applicant stabbed the deceased. It was noted that the time of the stabbing could be narrowed down to the period 6:02pm to 6:08pm by reason of the evidence of Mr Vora who left the premises at about 6:02pm and the evidence of the telephone call of Mr Matthew Holmes at 6:08pm. The Crown submitted that the delay that followed the incident before it was reported to police was significant.
16. The Crown referred to the statements made by the applicant after the incident to a number of persons noting that there was no evidence that the applicant had tried to contact police or triple-zero.
17. The Crown submitted that whilst the applicant relied upon the distress he demonstrated to others (including police) as being inconsistent with an intention to inflict grievous bodily harm upon the deceased, this was equally consistent with the applicant realising the consequences of his action and likely punishment: (Crown Written Submissions at [34].) Additionally, the distress was not inconsistent with the subsequent development of remorse for what he had done.

Evidence Relied Upon to Support the Crown Case

1. The jury's guilty verdict indicates that, having rejected the defence of self-defence, it was satisfied beyond reasonable doubt that the applicant intended to inflict grievous bodily harm on the deceased.
2. The Crown case, inter alia, relied upon the following factual matters: 1. The proposition that the deceased wanted the applicant to move out of the house in circumstances in which the deceased held the lease of the premise. This was relied upon by the Crown at trial as a basis for rejecting the applicant's version of events. 2. The evidence of Gloria Anderson (T 71-2), Ms Bella Winikerei (T 87-88, 92), Ms Eileen Winikerei (T 101), Peter Rofe (T 121-2) and the Statement of Michael McCluskey (T 171) as support for the proposition in (1) above along with Exhibit G, a note found at the premises written by the deceased which included the statement "… I am tired of you kicking me in the teeth all the time" and a statement to the effect that the applicant had seven days to get his stuff out: Constable Jorgenson (T 267). I note that there was no evidence that the applicant had seen the note. 3. An SMS message from the deceased to the applicant on 20 May 2011 stating, inter alia, "You have until 2pm to get my money to me [before] my family chucks your things on the road dale": Exhibit L. 4. The fact that certain evidence contradicted the applicant's own version which was that he and the deceased had had "a fight", that the deceased was "going off his head" because the applicant was "packing up" and the deceased then attacked him with the knife. The Crown properly noted, however, that the applicant also relied upon particular aspects of the relationship evidence, in particular, the evidence of the deceased's actions on other occasions that involved violence or that evidenced a violent disposition by the deceased towards him. Reliance was also placed upon Exhibit G, a handwritten note by the deceased, as to a suggestion that he, the deceased, was trying to continue the relationship. Exhibit G stated in part: "…I've told you before that if you and Kathy get back together I want you to move out …" 5. The evidence of Dr Van Vuuren, in particular, upon the matters referred to above in [252] and [254]. 6. That on the applicant's version, once he had disarmed the deceased by taking the knife from him, there was no need to stab him in the location he did and using the force he did. 7. As to the evidence concerning the likely cause of the fracture of the hyoid bone, the applicant's account recorded in the ERISP did not refer to him "squeezing" or "pushing" the deceased's throat in self-defence", both of which Dr Van Vuuren had been asked to assume occurred during the course of her cross-examination. 8. The applicant's statement to Pastor Johnson in which he said he "lost it".
3. In relation to the relationship evidence referred to in (2) above, I consider that such evidence was of limited probative value as context evidence. As I have earlier stated, the evidence as to the relationship between the deceased and the accused was ambiguous and contradictory as illustrated by Exhibit G and the evidence of the deceased being angry on the day he was killed.

Whether an Unreasonable Verdict

1. The determination of whether the verdict is unreasonable involves a question of fact and, inter alia, involves a determination whether notwithstanding that there is evidence upon which the jury may convict, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand: M v The Queen [1994] HCA 63; 181 CLR 487 at 492-3 referred to in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14] per French CJ, Gummow and Kiefel JJ.
2. This Court, of course, must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury had the benefit of having seen and heard the witnesses.
3. Whilst as a matter of law there was evidence in these proceedings to support a verdict of murder, the question for this Court on appeal is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The physical evidence that establishes that the applicant was seriously wounded by the deceased with a knife, together with the applicant's version in the ERISP that indicated a continuing or further attempt by the deceased to assault him after the knife was taken off him, are of central importance in the assessment of the whole of the evidence. Whilst there is evidence upon which a jury might convict, when all the matters established in evidence are considered I have concluded that it would be dangerous to allow the verdict of guilty to stand.
4. A reasonable doubt as to the applicant's alleged state of mind (intent to inflict grievous bodily harm) in my assessment of the evidence, inescapably arises on the evidence at trial. It established that in the course of a fight between the applicant and the deceased, the deceased attacked the applicant by deliberately inflicting serious injury to his left arm using the knife. Whilst in the course of the continuing violent struggle the applicant forcibly took the knife off the deceased, that did not stop the deceased from physically confronting the applicant in what by then had become a chaotic and violent situation culminating in the applicant holding the knife and swinging it in a type of sideways motion before he stabbed the deceased. The evidence establishes, as a matter of strong inference, that all such actions represented a continuous and rapidly unfolding series of events leaving very little time for reflection.

Order Granting a New Trial

1. The power of this Court on an appeal against conviction to order a new trial is provided for in s 8 of the Criminal Appeal Act 1912. That section is in the following terms: (1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. (2) Provision shall be made by rules of court for detaining the appellant until the fresh trial has terminated, or for ordering the appellant into any former custody.
2. The section gives a wide discretionary power to order a new trial but it in every case requires a sound exercise of the discretion: Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317, 321 per Gibbs J.
3. In the present proceedings I propose below a new trial order. On that basis, whether a second trial should proceed for manslaughter can be safely left to the discretion of the Director of Public Prosecutions, a discretion which it may be assumed will be exercised responsibly, having regard to this Court's observations before framing an indictment which the evidence is capable of supporting.
4. I propose that the appeal be allowed, that the conviction and sentence below be quashed and that a new trial be ordered.
5. WILSON J: I have had the advantage of reading in draft both the judgment of Hoeben CJ at CL and that of Hall J.
6. The facts of the matter and the evidence that was before the jury have been fully set out in both judgments, and I do not propose to repeat them. Ground 1: The verdict was unreasonable and cannot be supported on the evidence
7. In considering this ground this Court must make its own assessment of the evidence in order to determine whether, on the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the murder of Mr Lomas: M v The Queen [1994] HCA 63; 181 CLR 487; SKA v The Queen [2011] HCA 13; 243 CLR 400.
8. The Crown argues that it was open to the jury on the evidence before it to conclude that, in inflicting a single stab wound to the deceased, the applicant intended to inflict grievous bodily harm upon him. It relies upon the nature, extent and placement of the wound to establish the existence of that intention. Reliance is also placed upon evidence of the nature of the relationship between the applicant and the deceased, and upon purported inconsistencies in the accounts the applicant gave to others of what had taken place in the hours after the stabbing.
9. Having reviewed all of the evidence, and particularly, those aspects upon which the Crown principally relies, I am left with a reasonable doubt as to the applicant's guilt for the crime of murder. In my view, none of the aspects of the evidence cited by the Crown have the significance that the Crown argues for.
10. I agree generally with the analysis of Hoeben CJ at CL, and so my comments will be brief.
11. I do not think that the evidence of the injuries to the deceased can be made to do the work the Crown suggests it can. That is particularly so having regard to the qualifications to the evidence of the forensic pathologist who conducted the post-mortem examination of the deceased in cross-examination. Both Hoeben CJ at CL (at [89]) and Hall J (at [251]) have referred to the doctor's evidence on the possible significance of the broken hyoid bone. In short, Dr Van Vuuren could not exclude the possibility that the injury was inflicted during the course of a defensive action by the applicant. Similarly, whilst the evidence was that the fatal stab wound was inflicted with a moderate to severe degree of force, that does not of itself preclude it from having been inflicted as the applicant swung out with the knife in his own defence, as he said he did (at Q&A88 of the ERISP), and as Dr Van Vuuren conceded was possible.
12. That the deceased had some minor lacerations, interpreted as defence wounds, has to be viewed in the overall context of what occurred. The physical evidence points clearly to a struggle between the applicant and the deceased for possession of the knife. Such injuries as the deceased displayed are readily attributable to this struggle. They do not, in my view, point without doubt to an attack upon the deceased by the applicant, which the deceased unsuccessfully tried to defend himself against.
13. Both Hoeben CJ at CL (at [106]) and Hall J (at [267]) have considered the significance of the relationship evidence and concluded that it could do no more than establish the volatile nature of the relationship between the applicant and the deceased. I agree with those conclusions. It would appear that there were incidents of violence between the applicant and the deceased, but such violence was by no means entirely attributable to the applicant. There was a reasonably significant body of evidence that established that the deceased had assaulted the applicant, on occasion with weapons including a knife. The relationship evidence could do little or nothing to support a conclusion that it was the applicant who wielded the knife with murderous intent on this occasion.
14. Whilst the Crown relies upon asserted inconsistencies in the accounts given by the applicant of the stabbing in the hours immediately following it to suggest that the jury was entitled to reject the applicant's claim of self defence, what seems significant to me is the degree of consistency in his accounts. There was certainly a delay in the applicant summonsing help, but that may indicate nothing more than the applicant's state of shock and distress following the stabbing. That he was extremely distressed is not in issue; that is the evidence of all witnesses who spoke with the applicant in those first hours, and it is very clearly his presentation in his recorded interview with police.
15. Despite the shock and distress under which the applicant was clearly labouring when speaking with his pastor and with police, he was entirely consistent in his assertions that the deceased had attacked him with a knife and, after being seriously injured, he had defended himself. Those accounts were available to the jury to use as some evidence of the facts asserted, given that the representations were made at a time when they must have been fresh in the applicant's mind: s66 of the Evidence Act 1995; Graham v The Queen [1998] HCA 61; 195 CLR 606.
16. Such inconsistencies as exist are minor, and do not detract from the overall consistency of the applicant's account. Having regard to the terrible wound inflicted to the applicant's arm, and the other physical evidence, the most likely scenario in my view is that the deceased attacked the applicant with a knife (perhaps in a drug fuelled rage given the level of methylamphetamine in his blood) and injured him; there was a struggle for the knife, during which the deceased sustained the "defence" wounds; and, having gotten possession of the knife, the applicant swung out believing it was necessary to do so in his own defence.
17. These events have to be considered in context: this was a violent and rapidly moving altercation between two individuals who had shared an emotionally fraught and perhaps ambivalent relationship. The incident was not one that would have lent itself to rational analysis of the options available to diffuse the situation.
18. Although I am loathe to disturb the verdict of a jury, a body which is almost always in a superior position to that of this Court to assess evidence given in its presence, in this case I am left with a pervasive doubt as to the applicant's guilt for murder.
19. Since there was no real dispute about the objective evidence, the advantage usually enjoyed by the jury over this Court is not an advantage that can address that doubt.
20. In my view, the evidence adduced in the Crown case was capable of establishing manslaughter by excessive self-defence, but it could not establish murder to the criminal standard. I therefore agree with the Chief Judge at Common Law that the verdict cannot stand.
21. I also agree with his observations (at [121]) that the Crown case will not improve if placed before a jury for a second trial. On all of the evidence there must be a doubt of the applicant's liability for murder. Accordingly, I would set aside the verdict of the jury, quash the conviction, and enter an acquittal in the applicant's favour.
22. Should the Crown decide to do so, there is sufficient evidence for the applicant to be tried for the manslaughter of Mr Lomas. In that regard, I agree with the observations of Hoeben CJ at CL at [121] - [123], and do not propose to address the remaining grounds. Conclusion
23. I agree with the orders proposed by the Chief Judge at Common Law.

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