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[2025] TASCCA 12
General information, not legal advice.
Court of Criminal Appeal (Tas)
2025-09-23
Shanahan CJ, Estcourt J, Cuthbertson J
Original judgment source is linked above.
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Jordan and Jordan v Tasmania [2025] TASCCA 12
JUDGMENT OF: Shanahan CJ, Estcourt J, Cuthbertson J
Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to the evidence - Appeal dismissed - Appellants' contention that guilty verdicts in murder trial were unable to be supported by the totality of evidence - Compelling circumstantial evidence including evidence of strong motive singularly held by co-accused, numerous lies told by both co-accused, and ballistics evidence- Facts and inferences asserted by Crown capable of being found and drawn by jury - Jury entitled to be satisfied of appellants' guilt on the basis of the whole of the circumstantial case against them - No miscarriage of justice - Appeal dismissed.
Criminal Law - Appeal and new trial - Particular grounds of appeal - Improper admission or rejection of evidence - Other cases - Appellants' contention that trial judge erred in admitting video reconstruction of manipulation of car heat plate with crowbar - Contention that trial judge erred pursuant to ss 53(3)(d), 55, 135 and 137 of the Evidence Act 2001 - Section 53 not applicable because demonstration tendered by Crown had already been conducted and no challenge was made at trial - Reconstruction video relevant but of limited probative value - Video reconstruction not unfairly prejudicial - Facts of appeal would in any event enliven proviso under s 402(2) of the Criminal Code on basis that no substantial miscarriage of justice occurred - Appeal dismissed.
Criminal Law - Appeal and new trial - Particular grounds of appeal - Irregularities in relation to jury - Partiality - Appellants' contention that trial judge erred by failing to discharge foreman and reserve juror under s 40(a) of Juries Act 2003 upon disclosure of romantic relationship - Jurors expressed to trial judge their ability to be impartial and act according to individual conscience - Decision of trial judge not to discharge jurors made within discretion and without error of law or fact - No merit in ground of appeal - Appeal dismissed.
Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances not amounting to miscarriage - Misdirection and non-direction - Appellant's contention that trial judge failed to give a necessary direction in relation to post-offence anxiety and stress demonstrated by appellants - Where counsel for the appellants at trial submitted that such an instruction was not necessary - Conduct alleged was an involuntary reaction that constituted only part of the circumstantial evidence - No substantial miscarriage of justice - Appeal dismissed.
Evidence Act 2001 (Tas) ss 53(3)(d), 55, 56, 135 and 137
Juries Act 2003 (Tas) s 40
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432
Edwards v R [1993] HCA 63; (1993) 178 CLR 193
Festa v the Queen [2001] HCA 72; (2001) 208 CLR 593
HCF v The Queen [2023] HCA 35
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Neill-Fraser v Tasmania [2012] TASCCA 2
Paite v Tasmania [2019] TASCCA 5
State of Tasmania v Jordan and Jordan [2023] TASSC 20
Tringrove v Tasmania [2014] TASCCA 7
Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
Respondent: Office Director of Public Prosecutions
Judgment Number: [2025] TASCCA 12
"Rose is disappointed about the way that it's been handled. Shane has been police interviewed and then it has gone through the Family Law Court. Rose feels that it was portrayed that she ran to the police because she wanted full custody of [her daughter]. Rose felt she was in a position where she had to agree to him having contact with [her daughter]. Rose indicates that it came back that there'd be no further investigation, meanwhile she has her daughter coming home with a sore backside from the visits."
"...You know, they, they said to both Snow and I, 'you must have hated Shane because he raped your daughter.' Um 'And if it had gone to court and he was found guilty he would have been up for sexual misconduct with [the child].' And I said 'Well the whole thing is, yes we were very disappointed at um, the way that the um, department's handled it' ...
Because we considered that we'd gone through everything, like the, there was doctors reports put in. There was a child protection report put in I said, 'and a guy from Launceston here, he actually went down and saw Shane.' He didn't, didn't um what was it, he, not interrogate but ...
He didn't interview him, he went down and saw him and then rang Rose and said 'oh there's nothing untoward happening.' How would he know on his own?"
"[The child] was very hungry and dehydrated and complaining of her vagina being very sore and itchy and I had a look at it and it was red and sore looking"
Appellants' stress and counselling after the murder
"That the learned judge failed to direct the jury about the way in which evidence of post-offence anxiety and distress could be used by the jury as demonstrating consciousness of guilt and as to the dangers of misusing that conduct."
[5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsafe and unreasonable'. The test ordinarily to be applied by an appellate court when considering whether a verdict is 'unsafe or unsatisfactory' was explained by Mason CJ in Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 442-443 as follows:
'It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...'.
[6] In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 - 619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443 - 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 - 462)'."
"98 The appellant contends that the verdict of the jury was unsafe and unsatisfactory. The ground finds statutory expression in this State in the Criminal Code, s 402(1), which provides that the Court "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence." The question for an appellate court is to determine, on its own independent assessment of the evidence, whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. As was explained in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the jury ought to have entertained a reasonable doubt. In M, Mason CJ, Deane, Dawson and Toohey JJ said at 492-493:
'Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe', or 'dangerous or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand.
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. [Footnote omitted.]
'... the court 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 has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.'
"In resolving that question the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility. Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree. Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe. When that happens the court is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury's apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof."
'But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard'."
"143 Inability to resolve all issues, even those consistent with innocence, is not an unusual feature attaching to trial by jury. Human affairs are not like jigsaws, cut to shape and size with defined edges. Behaviour of participants in events is not always logical or consistent. It is not unusual for facts to emerge which are, on one view, capable of supporting a defence case or casting doubt upon a Crown case. The existence of such facts does not automatically preclude acceptance of the essential prosecution evidence and a finding of guilt. The point was made in R v Hillier [2007] HCA 13, 228 CLR 618 that it is necessary to consider the whole of the evidence when facts exist which, on one view, tend to point in the direction of innocence.
145 The joint judgment in Hillier made the following observations:
"[48] Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
[49] In the present case, there was evidence (such as the evidence of unidentified DNA on the pyjama top) which was consistent with Mr Hillier's innocence. But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty'."
"6 In relation to motive, the following relevant topics of evidence were called:
"The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt."
"16 The body of circumstantial evidence relied upon by the Crown was insufficient to prove that the appellant was the killer beyond a reasonable doubt, and the defence theory as articulated at trial demonstrates that point. The lack of evidence at trial about someone who held some animosity towards the deceased is unsurprising - often such views are tightly held and acted upon secretively. The body of evidence detailing the extensive police efforts at ruling out other suspects might have some superficial attraction to a jury, but considered rationally, does little to compel a conclusion that it must have been the appellant who committed the crime.
"The reason asserted for the crime - that the Appellants wanted to prevent further abuse perpetrated by the deceased to their granddaughter - makes no sense when the evidence shows that unsupervised contact had commenced a significant period before the crime. This reasoning would only make sense if the crime occurred before the contact recommenced.
The ballistics evidence is equivocal in light of evidence of both Noel Jetson and the deceased having possession of an unaccounted for .22 firearm and evidence that both had been shooting at the Little Pine property.
The objective evidence of the crime scene and autopsy indicate that a common variety of firearm and ammunition were used and there was nothing specific about the evidence to lend to the conclusion that one firearm or the other was more likely to have been used in this case.
Evidence of statements made by the Appellants wishing harm to the deceased, where uneventful and dismissed in the minds of each witness. With the exception of Justin Titley, who conceded that he had previously repeated lied to police before volunteering this information at at time when he considering himself to be the lead suspect in the case (sic)."
"The defence case put through cross-examination was that whilst the deceased was murdered, he was not murdered by the appellants. They raised alternative explanations for individual pieces of circumstantial evidence, but did not have an explanation for all of the evidence considered as a whole. They denied that the motive still remained at the time of the deceased's murder, claiming that the appellants had moved on. They were critical of the evidence from Justin Titley, arguing that he was motivated by malice after his separation from Rose Jordan and suggested he was lying out of a desire to shift the focus of the police investigation away from himself. They highlighted that the deceased was seen speaking to male outside his house on the morning of his death in a white ute, who had not been identified, and there was a lady seen on the deceased's street that same morning in a red car drinking from a coffee cup, who had also not been identified. No logical submission was made to link either the man in the white ute or the lady in the red car to each other or the murder. There was no evidence that the deceased interacted with the lady in the red car and white utilities are extremely common in farming areas. The deceased spoke with and saw numerous friends and family members after speaking with the person in the ute and was described as being in a good mood and he did not mention having a run in or disagreement with anyone that morning. The defence also argued the timeframe during which the deceased's death could have occurred was a large window and this meant the appellant's may not have been in Campbell Town at the time of the murder. They argued the fired cartridge case in the alley way was not connected to the murder. They suggested that different people react to death differently and that the appellant's stress and anxiety was because the deceased had been their son-in-law and was the father of their granddaughter. They suggested that there was evidence that the deceased had an unregistered firearm at some point in time which could have had something to do with the murder."
(a) The murder was pre-planned by a person or persons that knew the deceased, that had a strong motive to kill him, and that was familiar with firearms.
(b) The evidence suggested that other than the appellants and Rose Jordan, there was no other known person with a strong motive.
(c) Both appellants had a strong motive to kill the deceased, and lied about their strong dislike of the deceased.
(d) Both appellants had opportunity to commit the crime and lied not only to the police but also to their daughter, Rose Jordan, and Justin Titley, prior to it being known that the deceased had been murdered - in fact it was prior to it being known that he was dead.
(e) The appellant Cedric Jordan was familiar with firearms.
(f) Both appellants had the means to commit the crime, and lied about having such means.
(g) Both appellants admitted that Cedric Jordan was in the area of the alley way where the fired cartridge case was found, albeit a week before, and that Noelene Jordan was in the car.
(h) Both appellants were involved in making threats about the deceased.
(i) The appellant Cedric Jordan had a pump action .22 rifle belonging to Noel Jetson, which in the presence of Justin Titley, Rose Jordan, and the appellant Noelene Jordan, he test fired using subsonic ammunition stating that it was a 'good rifle to get rid of someone with'.
(j) Both appellants travelled together to Campbell Town and were present in Campbell Town at the approximate time of the murder.
(k) Both appellants were together after the murder.
(l) Both appellants told a series of jointly concocted lies to the police.
(m) The appellants were ballistically linked to the murder. They had in their shed the exact same type of ammunition that was used in the murder, there was evidence they had access to a silencer, and the same rifle that was used to fire cartridge cases at their remote property at Little Pine, in the specific area where Cedric Jordan fired from, was used to fire the fired cartridge case located in the alley way where the deceased was shot.
(n) The appellant Cedric Jordan was linked both to the alley way and to Little Pine where the firearm was used. There was nobody else so linked. He was also linked to the alley way not just by the ballistics evidence, but by his own admissions, and also the admissions of Noelene Jordan, that he was there at the time at the murder, albeit he said it was a week before.
(o) The appellants were both extremely distressed after the deceased's murder, which was clearly inconsistent their prior involvement with and feelings towards the deceased."
"209 In relation to the specific points made by the appellant Mr Jordan at [14]:
(a) The murder of the deceased entirely resolved the ongoing conflict and concern that [the child] was being sexually molested by the deceased. At the time the deceased was murdered, all other legal avenues had failed. After the deceased's death Rachael acquired full and sole custody of [the child] as her father had been murdered.
(b) The issue on the trial was not whether the deceased had been murdered, but rather whether the appellants committed the crime. The nature of the scene and whether the crime was "brazen" was not relevant to that issue, as it made no difference to who committed the crime. In any event, the scene was relatively isolated, particularly at night.
(c) Given the evidence of Mrs Barker about when the deceased left her home, namely when Dancing With the Stars started, and the deceased's intention to go home and watch the football which he had taped earlier, that there is no evidence that he went anywhere else, the evidence from the scene and the circumstantial evidence about the deceased's habits, the time of death was certain, namely between 6:40pm and 7:00pm. Given the admissions made by the appellants about when they left Swansea to drive to Launceston via Campbell Town, combined with the telephone records...there was no uncertainty about the fact that the appellants were in the vicinity of Campbell Town when the deceased was murdered.
(d) The evidence on the trial was that at the time of the murder the appellant Mr Jordan regularly went shooting. His practice was to go shooting every Sunday. The 'subsequent clean-up of the scene' involved the appellant collecting three fired cartridge cases.
(e) It is fanciful to suggest that the casing at the scene had nothing to do with the murder. The evidence was that, at most, one person walked in the vicinity of where the casing was located prior to the scene being treating (sic) as a crime scene, namely Constable Burbury. It is fanciful to suggest that a police officer happened to drop a casing at the murder scene and some ten years later that casing was forensically linked to the accused's property at Little Pine. Further, the jury could easily conclude that the casing had only recently been left at the scene because of the evidence that it was shiny, not dusty and sitting on top of living vegetation, and the evidence of the experienced forensic officers that it appeared to them that it had been recently deposited...
(f) The possible ways in which the appellants could have disposed of the murder weapon is only limited by imagination. Their properties were not searched for a considerable period of time after the murder.
(g) The evidence from Mr Titley was that the appellant Mr Jordan fired the rifle twice, which could have resulted in only a single casing being ejected. It was possible that the appellant collected the casing or casings at the time he test fired the .22. In any event, the search at Brambletye occurred many years later and involved searching for a very small object. There was also evidence that police searched Noel Jetson's property where he had fired his rifle from and no casings of any type were found.
(h) There was no evidence on the trial that Little Pine was a popular shooting location. There was some evidence that poachers may have trespassed on the property, however the casings were found near the cabin in a location that was used by the Jordan family to sight in their firearms. The suggestion that the killer used the same firearm that was randomly used at the Little Pine property years prior to the murder, and in the same location as the Jordan family fired their firearms from, is fanciful.
(i) There was a significant body of circumstantial evidence to suggest that the murder was committed with Noel Jetson's unregistered .22. Namely:
(i) Where the cartridge cases were located at Brambletye, which strongly suggested that they were fired by a member of the Jordan family;
(ii) Overwhelming evidence Noel Jetson had an unregistered pump action rifle that passed to the appellants when Mr Jetson became senile;
(iii) Evidence that the firearm was test fired at Brambletye prior to the murder...;
(v) Both accused lied about the existence of the firearm (see [154] above).
(j) As stated above, it is fanciful to suggest that the cartridge case found at the scene was not from the murder weapon. While it is true that the ballistics expert could not definitively state that one of the projectiles from the deceased's body came from that casing, his opinion was that the projectiles were entirely consistent with coming from that type of cartridge case, and that the evidence was that there was only one type of cartridge that the projectiles could have been from.
(k) There was evidence that there are many different types of subsonic .22 calibre ammunition and many different brands, but the combination of the projectiles and the cartridge case could only have come from Winchester Super X subsonic ammunition, namely a particular brand and a particular type, which the appellant had possession of.
(l) It was not the Crown case that the appellants concealed the weapon for a number of years. Indeed it was unsophisticated to use a weapon which many people knew existed. There was nothing sophisticated in the commission of the crime, other than having knowledge of the deceased's movements and the evidence was that the appellants knew that the deceased routinely had dinner with his parents on Sunday night. Mr Jordan was an experienced shooter. There was nothing about the scene which required it to be cleaned. There was nothing about the disposal of the weapon which required any sophistication. Consistent with their level of sophistication the appellants failed to consider the significance of mobile phone tower evidence and once their lies were uncovered failed to stick to a consistent narrative.
(m) Justin Titley told Burt very soon after the murder that Mr Jordan had a pump action .22, Mr Jordan test fired it and it had "just disappeared". He also told Rose Jordan and this was captured by a listening device. Justin Titley also stated that the appellant, Mr Jordan, said it was 'pop's rifle'. There was overwhelming evidence that Noel Jetson had an unregistered pump action .22.
(n) There was significant evidence adduced on the trial to prove that the murder of the deceased was investigated thoroughly over many years by very experienced detectives. That investigation uncovered the fact that the deceased some time prior to his murder did own an unregistered single shot .22. The evidence from the deceased's body suggested however that he was shot in quick succession..., which is not consistent with the use of a single shot firearm. The suggestion that there was some other .22 firearm owned by the deceased, given the extensive investigation, is fanciful. Further no one had seen the deceased's single shot rifle in years and there was evidence that after he became the firearms dealer for Roberts in 2007 he became very strict in complying with firearms regulations to avoid losing his dealers licence.
(o) It was open to the jury to conclude that the appellant's level of anxiety and distress after the murder was consistent with their involvement in the commission of the crime due to the fact that they hated the deceased and believed that he was sexually molesting their granddaughter. However, as with every piece of circumstantial evidence there is by definition an alternative explanation for the evidence consistent with innocence." (Transcript and submission references omitted.)
192 It is convenient to interpolate here that the Court's own review of the evidence in this case confirms the proof of the facts asserted by the Crown in the foregoing paragraph and the availability of the inferences relied upon.
"210 In relation to the alternative hypothesis put forward by the appellant Mr Jordan ... we rely on the submissions that were made to the jury in address...
(a) These points were made by the appellant's counsel at trial and were rejected by the jury ;
(b) The respondent does not agree with the characterisation of each individual piece of evidence relied on by the appellant;
(c) Each piece of evidence viewed in isolation is innocuous;
(d) In every trial there will be pieces of innocuous evidence that are not completely explained, for example evidence of a random fifty year old woman sitting in a car, drinking a coffee, in Campbell Town;
(e) When each piece of evidence relied on by the appellant is viewed together there is no link between each piece. Circumstantial reasoning does not assist because there is no link between each piece of evidence and therefore when viewed together the sum of each piece of circumstantial evidence does not strengthen the possibility that someone other than the appellants committed the crime.
(f) When viewed in the context of the entire case presented at trial, the jury were entitled to reject the suggestion that someone else committed the crime."
"Ninety percent of normal vehicles can't drive up those ramps, because the bumper touches the ramp before the wheel, and it will damage the front bumper so they're only used in very select - if you got, extreme four wheel drive type vehicles."
"(1) A judge, on application, may order that a demonstration, experiment or inspection be held.
(2) A judge is not to make an order unless satisfied that -
(a) the parties will be given a reasonable opportunity to be present; and
(3) Without limiting the matters that a judge may take into account in deciding whether to make an order, the judge is to take into account the following:
(b) whether the demonstration, experiment or inspection, in the court's opinion, will assist the court in resolving issues of fact or understanding the evidence;
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, misleading or confusing or might cause or result in undue waste of time;
(d) in the case of a demonstration, the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;
(e) in the case of an inspection, the extent to which the place or thing to be inspected has materially altered.
(4) The court, including the jury if there is a jury, is not to conduct an experiment in the course of its deliberations.
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury."
"(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible."
"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) Evidence is not taken to be irrelevant only because it relates only to -
The court, during a trial, may discharge a juror without discharging the whole jury if -
(a) the court suspects on reasonable grounds that the juror may not be able to consider the case impartially; or
(b) the juror becomes incapable of continuing to act as a juror; or
(d) it appears to the court that, for any other reason, the juror should not continue to act as a juror."
"... the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury, is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
"13 Accordingly, in all cases of jury or juror misconduct, what is required to establish a miscarriage of justice, and what will also establish a substantial miscarriage of justice, is that a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. Although the terms have been used interchangeably in this context, the test is best expressed in terms of a reasonable 'apprehension' rather than a reasonable 'suspicion'. A suspicion is 'a state of conjecture or surmise where proof is lacking'; it is 'more than a mere idle wondering'; 'it is a positive feeling of actual apprehension or mistrust'. To be reasonable, a suspicion or apprehension requires a positive feeling of actual apprehension or mistrust which has an objective basis in fact. To apply the reasonable apprehension test therefore requires first that such relevant facts as can be inferred from the available evidence be found on the balance of probabilities. In undertaking that necessary preliminary fact‑finding, it is useful to record the truism that "[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed"; inference requires "something more than mere conjecture, guesswork or surmise".
'On the facts to be found on the balance of probabilities, might a fair‑minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?'" (Footnotes omitted.)
"Despite the reserve juror not being required to deliberate on the case, the remainder of the jury panel would have been faced with two jurors who had a real potential of acting as a voting bloc despite their protestations of their capability of independently scrutinising the evidence. This was an ongoing circumstance throughout the hearing of the entirety of the evidence in the trial and possibility (sic) influenced the jury's assessment of the case...
A fair minded and informed member of the public might entertain a reasonable apprehension that one or more jurors might not bring impartial and unprejudiced minds to their deliberations in the trial. This could constitute a fundamental irregularity with the jury."
"Evaluation of the available evidence from the perspective of a fair-minded and informed member of the public must take into account of the requirement of s 50 of the Jury Act that '[t]he members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried'. Apprehension of a violation of that oath is not lightly to be inferred."
"And it's hard - a bit hard to characterise a medical condition if I can use that as ... an admission."
"I agree with what's said in relation to point 9 of post offence conduct because evidence of essentially a medical condition isn't conduct or necessarily something someone has control over. So, I agree it just becomes another circumstance that can be outlined."
"The jury should have been told, with the authority of the Bench, that the evidence could only be used if the jury finds the reasons for the symptoms of stress was as a result of knowledge that the appellant was guilty, and for no other reason"
"So, in summary it's the Crown case that in the days after the murder both accused made multiple visits to the doctor and had counselling sessions. They were - also both prescribed drugs for their anxiety. It's the Crown case that that such extreme reaction was inconsistent with the death of the ex-son-in-law who they obviously didn't like very much. However you might think it's consistent with someone who committed a terrible crime and think they might be caught for which in itself explain why they were so stressed and as I come to shortly, both accused told many lies when spoken to the police."
"Ladies and gentlemen and it's also not the lying the only sign of them being guilty. They were also both extremely stressed after the murder... "
"There is settled authority for the proposition that where the prosecution seeks to rely on evidence of post-offence conduct as probative of guilt, or as going to the credit of the accused's explanations, such as attempts to hide evidence, flight, setting up a false alibi or laying a false trail, a direction in the nature of an Edwards or a Zoneff direction should be given... There is, in principle, no difference between the basis of the admission of such evidence, or the type of direction that is called for, as there is in the case of lies told by an accused person."
"Now, ladies and gentlemen, taken on its own this evidence may be not that significant but you don't take it on its own. Instead you take it with all the other evidence, that is, the lies, the motive, the opportunity to commit the crime. It all fits together. It's a bit like the plate in the hamburger example. On its own, it may not amount to much. However, when you put all the evidence together, it demonstrates guilt."
"The next post-offence conduct that you have been pointed to that I want to deal with is the evidence of stress, both at the general practitioner and at the funeral of Shane Barker, and essentially that the Jordan's reaction to the murder of their son-in-law was so out of touch with what was expected that you should essentially read into it that they are guilty. Well, what actual evidence is there about this? Firstly, you have records from the Swansea Medical Practice that confirm that Mr and Mrs Joran attend their GP very regularly. There is this information that Noelene Jordan has called I think four times on Monday the 2nd before she knows about Mr Barker's body being located. So there's this suggestion that she must be ringing repeatedly because they're so stressed.
If you unpack that it doesn't really fit. Firstly we know that there are two lines to the medical practice. You have heard that from Mandy Burbury, so there's only two phone lines that can be called. Secondly, I'm sure you're all familiar with calling the general practitioner on a Monday morning and trying to get an appointment. It is very difficult to get through, it's completely normal that you would need to ring multiple times.
But the main reason that that doesn't make any sense, if you're so stressed and you need an appointment, you ring up repeatedly. You make one on Tuesday. If you desperately need the appointment because you're so stressed about having to commit a murder, why do you reschedule it and come at a later time? They have an appointment on Tuesday and they reschedule to Wednesday because they are at Brambletye with Rose and [the child].
If you were desperate you would prioritise the appointment. They do attend on the 5th of August of 2009, and Mr Jordan says, 'I've got trouble sleeping, I'd like some' - well, he doesn't ask for Diazepam, but he is prescribed Diazepam. I'll make sure I've got the right one - no, Temazepam for him, and then Noelene Jordan on the 11th of August is prescribed Diazepam by Dr Burn for anxiety.
Dr Burn arranges for them to see a counsellor in the coming days, and it's noted by Dr Burn in the medical reports - and this is at page 1211 of the transcript, that Noelene Jordan has fears for her daughter and her granddaughter which is consistent with what she has told the police about why she lied, concern for Rose and her family, and is very consistent with what would be going on in the week or so after a murder like this of your ex son in law.
Dr Grove and Dr Burn both say it's not unusual for patients to seek assistance after the death of a family member. It's not unusual to have trouble sleeping or be anxious and be prescribed these drugs, in fact, Dr Burn went so far as to say, it's common.
We also have the evidence of Rodney Cruickshank, who was the counsellor and the Jordans attended two sessions with him. There is nothing, according to him, and he's asked about this at page 1237 that was hinted or shared to him that indicated that they were the perpetrators of the crime. It was also said to you, that Mr Cruickshank spoke to the Jordans about needing a lawyer and gave them a legal referral sheet. I'd ask that, in relation to that, you look at page 1233, 34 and 36 for that passage, because Mr Cruickshank was quite clear that he - he remembers giving a legal referral sheet but he doesn't know why he gave it. So you don't actually have evidence that the Jordans were asking for a lawyer at that time. In fact, Mr Cruickshank said it could be something as simple as someone asking about how police investigation goes. So there are many reasons for that legal referral sheet to be given and that Mr Cruickshank was what's called a mandatory reporter. So if he thinks that he has information about a crime that's going to be committed, or something serious, then he refers it to police, and he didn't do that in this case, because he didn't have those concerns.
But there's this suggestion to you that, that information, that evidence, suggests that their reaction was so outlandish in some way, just because Shane Barker wasn't their favourite person. To that I say, the starting point, is that this is an unexpected, a murder of their grandchild's father. It must have hit them that she is going to then face her entire life, growing up, without him. It is clear from the telephone intercept material that the Jordans are very close to [the child], you can even hear her and - her talk to both Noelene and Cedric at one stage. That has to be that empathy for [the child], has to be part of what they're feeling.
There's also concern, because nobody knows at that time, what has actually happened to Mr Barker, who the perpetrator is. So it's entirely rational that they would be worried for Rose and [the child's] safety. Leaving aside that somebody, who they knew, had died unexpectedly and unfairly, even if you don't like that person, you can still feel sadness and stress about the fact of them dying and all of these feelings are normal according to the general practitioners. There is no rule about how someone ought to react in this circumstance and people will react differently and a lawyer who wasn't there at the time, in court, 13 years down the track, 14 years down the track, suggesting that how they reacted is some basis to suggest that their response for this murder, well, I'd say that's a step too far.
In the same vein, you've got the evidence at the funeral. Rodney Jones says that Mr Jordan was nervous and said, 'I'm not sleeping. I feel crook in the guts.' Well, okay. That seems to be consistent with what he told his general practitioner - that he wasn't sleeping. But if that reaction is a reaction to committing this murder, well, why are you telling Rodney Jones that, who is one of Shane Barker's best mates? None of that evidence suggests that Mr Jordan is actually responsible for this crime, in fact, I'd suggest it tends to suggest the opposite..."
"Again in their closing the prosecution referred to Cedric's presentation at the funeral and the wake. Again prosecution seem to actually suggest that Cedric Jordan and Noelene Jordan would not have been so grief-stricken that they would need counselling, that it seems to be they're saying it's either put on or disproportionate or some sort of post-traumatic stress disorder caused by their alleged involvement. Well, in terms of going to the doctor Cedric Jordan clearly went to the doctor. They are long-term doctors who you might think in addition to their professional obligations would be best placed because they're long-term doctors to be able to notice the significant change in their presentation.
The doctors are not just there giving medication because someone is asking for them, they're exercising their professional judgment. If Cedric Jordan is putting it on he's fooled his long-term doctor but he is given Temazepam once. In terms of that being an unusual prescription type in circumstances of extreme grief or unexpected trauma, page 1195, Dr Grove said that is not unusual. Dr Grove also made a referral to a counsellor and they went to the counsellor twice.
So you might think, well, death is clearly the great equaliser but there is nothing equal or set or standard about the way straight white men in their fifties or sixties are supposed to act or not allowed to act in terms of grief. It was and remains a shocking shooting murder of Shane Barker. I remember Maree Jones clearly and Shane Barker's colleague at Roberts clearly to this day have been significantly upset by it. There's not a timeline or time out when you're supposed to stop grieving or a way you're supposed to grieve. Shane Barker was and always remains the father of Cedric Jordan's grand - grandchild."
"The next subject I want to just briefly talk about is the part of the prosecution where they argue that Mr and Mrs Jordan had such an extreme emotional reaction to Mr Barker's death that it went beyond what might be expected of an innocent person and is suggestive of a reaction consistent with somebody who has actually committed a murder.
The defence says that you cannot be satisfied that anything they did or any way they acted was anything other than normal - normal human reaction to the death of their granddaughter's father. So I don't really want to expand on those arguments any more. You've heard the evidence and the arguments and I mentioned them as part of my summary."
Jordan and Jordan
Tasmania [2025] TASCCA 12
(1984) 153 CLR 521
(1991) 171 CLR 432
(1993) 178 CLR 193
(2001) 208 CLR 593
(2007) 230 CLR 559
(1994) 181 CLR 487
(1994) 181 CLR 41