Martinez v R; Tortell v R

Applicant) Regina (Respondent) Representation: Counsel: G Bashir SC with C McGorey (Applicant) T Game SC with S Howell (Applicant) M Cinque SC (Respondent)

Solicitors: F McGowan (Applicant) S Alexander (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2015/251812; 2015/251805 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2017] NSWSC 1659 Date of Decision: 12 December 2017 Before: Matthews AJ File Number(s): 2015/251812; 2015/251805

Judgment

1. MACFARLAN JA: In March and April 2017 Mr Wade Martinez and Mr Jake Tortell stood trial in the Supreme Court at Sydney before a judge and jury on an indictment alleging against each that he: "Count 1: On the 14th of February 2015, at Bossley Park in the State of New South Wales, did murder Gewargis Garmo. Count 2: On the 14th day of February 2015, at Bossley Park in the State of New South Wales, wounded Gewargis Garmo with intent to cause grievous bodily harm."
2. The trial judge also left to the jury the statutory alternative to Count 2 (under s 35(3) of the Crimes Act 1900 (NSW)) of reckless wounding in company.
3. After a trial lasting nearly six weeks, at which the Crown called some 47 witnesses, they were each convicted on the murder count and Mr Martinez was also convicted on the statutory alternative to Count 2. Mr Tortell was acquitted on Count 2.
4. On 12 December 2017 the applicants were sentenced to (in the case of Mr Martinez, an effective total of) imprisonment with a non-parole period of 16 years and a balance of term of 6 years ([2017] NSWSC 1659).
5. Mr Martinez appeals, or alternatively seeks leave to appeal, against his conviction on the following grounds: "Ground 1: The trial judge erred in failing to leave to the jury an alternative verdict of manslaughter, on the basis of a joint criminal enterprise with an agreement falling of short of intentional infliction of grievous bodily harm. Ground 2: (A) The trial judge failed to identify for herself or direct herself as to the necessary legal principles informing necessary directions on consciousness of guilt, and failed to give necessary directions on this issue, and/or (B) The trial miscarried as the directions given on consciousness of guilt at the trial were erroneously inadequate. Ground 3: (A) The trial judge failed to identify for herself or direct herself as to the necessary legal principles informing the directions on the appellant's silence at trial and failed to give necessary directions on this issue, and/or (B) The trial miscarried as the directions given on the appellant's silence at trial were erroneously inadequate. Ground 4: The jury's verdict that the element 'in company' was proven beyond reasonable doubt on the alternate Count 2 was unreasonable or alternatively there was a miscarriage of justice given the verdict of the jury acquitting Tortell on both Count 2 and the alternate to Count 2. Ground 5: The trial on the alternative offence to Count 2 miscarried on account of error of law in the direction to the element of the offence of being 'in company'."
6. Mr Tortell appeals, or alternatively seeks leave to appeal, against his conviction on the following ground: "The trial judge erred in her directions on manslaughter and erred in failing to leave (or leave in any meaningful way) the alternative of manslaughter by unlawful and dangerous act upon the basis of joint criminal enterprise to injure or harm the deceased falling short of an agreement to kill or inflict grievous bodily harm."

The initial altercation in Dashmere St

1. On the evening of 14 February 2015 the applicants ("Wade" and "Jake") were visiting the home of Tracy McVerry at 29 Dashmere St Bossley Park. Tracy has twin daughters, Jade and Krystal. Wade and Jake had gone there to give a pet duckling to Jade's child. Tracy was out at the time and Richard Cook, her partner, was at 29 Dashmere St babysitting Jade's child. Wade and Jake arrived in Jake's black Lexus vehicle which he parked in the driveway. During the evening, whilst still at 29 Dashmere St, Wade telephoned Krystal and asked her to pick up some fast food for them. Krystal did that with Jade and their friend Cristian Younan in Cristian's Toyota Camry, which Krystal drove. When they arrived in Dashmere St, shortly after 10pm the deceased, Gewargis Garmo ("George") and his girlfriend, Nicole David, happened to be walking past. George and Nicole crossed the road to speak to Krystal and Jade who were still seated in the Camry.
2. Nicole gave evidence that George was told that Wade was inside the house. As she and George turned to walk away, she heard footsteps behind her and saw Wade, who started fighting with George. Wade had a knife with which he cut George's second finger on his left hand. George then ran down Dashmere St towards Mimosa Rd. Nicole got into the Camry to seek help. She was panicked and crying.
3. According to Krystal's evidence the "scuffle" occurred on the opposite side of the street to 29 Dashmere St. She did not see a knife but she saw George run on foot towards Mimosa Rd and Wade and Jake chase him. After Nicole got in the Camry, Krystal drove it around looking for George. Nicole was "in hysterics".
4. According to Jade's evidence, she told George to run when she saw Wade come out of the house. She saw Wade holding something "shiny" and then "a bit of movement" across the road. Jade indicated that "it looked like they were fighting". Then "one of them took off, running" and Wade and Jake jumped in their car and headed in the same direction that George had run.
5. Cristian gave evidence that he saw Wade and Jake run after George. He didn't see what then occurred as he was the front passenger in the Camry facing in the other direction. He saw Wade come back to the Lexus holding a "kitchen knife" about 30 centimetres long.
6. Joseph David, who lived at 24 Dashmere St gave evidence that he looked outside the window of his house and saw a "guy just running for his life and two guys" chasing him.

Rimfire Close

1. Nicole rang George's mobile soon after leaving 29 Dashmere St in the Camry. George told her that he was in Rimfire Close which ran off Dashmere St. Krystal collected him from there in the Camry. Police later found a blood trail left by George in Dashmere St and houses near Rimfire Close and adjacent streets.
2. According to Krystal, she saw the Lexus as she was driving the Camry out of Rimfire Close into Dashmere St. The Lexus was travelling in the opposite direction to the Camry but did a u-turn and started to follow closely behind it. Nicole said that whilst the Lexus was following the Camry, she looked back and saw Wade through the Lexus' front windscreen holding "a knife leaning across on the steering wheel".

Mulligan St

1. Krystal drove the Camry from Dashmere St to Mimosa Rd and then on to Mulligan St where the Lexus overtook the Camry, stopping on the road in front of it and forcing the Camry to stop. This occurred near the intersection of Mulligan St and Barrington St.
2. Krystal gave evidence that she had been travelling in excess of 50 kilometres per hour when the Lexus overtook her and skidded to a halt, positioned partly sideways across the road. She told George to get out and run, which he did. He ran back along Mulligan St towards Mimosa Rd. (This was the fourth side-road further along Mulligan St, there being two entrances to Lofty Crescent and one to Gambier St before Mimosa Rd). She did not see Wade or Jake get out of the Lexus but the Lexus started moving without them in it and Wade returned to it to put its handbrake on. Jade and Cristian got out of the Camry to make sure that George was okay. Krystal then drove the Camry around the Lexus, and went back to pick up Jade and Cristian. Not having found George, they dropped Nicole home.
3. Jade gave evidence that when the Camry stopped, George got out and ran down Mulligan St towards Mimosa Rd with Wade and Jake chasing him. When the Lexus started rolling, she saw Wade run back to put the hand brake on. She started running in the same direction as George and saw him and Jake, who was running behind George, turning into a side street (which is likely to have been Lofty Crescent). Cristian caught up to her, as did the Camry into which they both got.
4. Cristian gave evidence that the Lexus "braked in front" of the Camry and "barricaded us off". George got out of the car but Cristian lost sight of him. He saw Wade and Jake running in the direction that he had last seen George, but at some point saw Wade return to the Lexus to stop it rolling. He did not see anything in Wade or Jake's hands.
5. A local resident who lived at 45 Mulligan St gave evidence that he saw two males running along Mulligan St in the direction of Mimosa Rd, a few metres apart. He did not see anyone carrying a knife.
6. Nicole gave evidence in cross examination (but not in chief) that she recalled that when Wade got out of the Lexus he had a knife with him, like the one she had seen him holding when the Lexus was driving behind the Camry. She agreed that she had not mentioned this in either of her witness statements.

George's death

1. George was found dead on the driveway of 8 Garnet St at 11:20pm, about an hour after the events referred to above. As Wade submitted on appeal, there was "a strong circumstantial case" that the following had occurred: 1. George ran along Mulligan St, turning into the second entry to Lofty Crescent, and then into the yard of 1 Lofty Crescent; 2. he jumped the back fence into 8 Garnet St and made his way towards the front yard of the property, which was fenced off from the back yard but could be accessed via a gate; 3. as he opened the gate he was stabbed numerous times with a bladed instrument (that was never recovered); 4. he moved a short distance onto the driveway of 8 Garnet St before collapsing and dying; and 5. his fatal injuries were inflicted by at least 10:12 pm when Jade's call to his mobile went unanswered (as did all subsequent calls).
2. A forensic pathologist, Professor Johan Duflou, performed an autopsy and gave evidence that the direct cause of George's death was some eight stab wounds to his body. He found wounds to George's trunk, neck and arms, including lethal injuries to his left lung, heart and aorta. He observed a number of injuries on George's upper limbs and left hand which he considered might be defensive injuries. Professor Duflou believed that all the wounds were caused by a knife. Injuries to George's left hand were superficial relative to other injuries but would likely have caused bleeding, without being life threatening.
3. DNA that was statistically consistent with both George and Jake's DNA was recovered from one of George's fingernails. DNA recovered from the Lexus was similarly consistent with that of George and Jake's DNA.

The alleged threat to Jade on 21 May 2015

1. Jade gave evidence that on 21 May 2015, a little over a month after George's death, Wade said to her, at a shopping centre, "[m]ake sure you keep your mouth shut. I'm watching". The occurrence of the conversation was captured on CCTV. The Crown alleged that the film showed Wade pointing in a way that may have been consistent with the alleged threat, whilst Wade's counsel alleged that there was no body language evident which supported Jade's evidence.

Police evidence

1. Police Sergeant Barnes gave evidence that there had been "drive by" shootings at Wade's family home in Bossley Park on 27 May and 31 May 2014, about 9 months before George's death. He said that police had concluded that George was involved in both of them.

Wade's case

1. Wade did not give evidence but called a friend, Nathan Young, to say that George had said to him in relation to Wade "fuck that cunt. I'll get him". Young reported this to Wade and that he had seen George with a gun.

Jake's case

1. Jake gave evidence that he and Wade had been at 29 Dashmere St for four to five hours on 14 February 2015. He said that he had been drinking and recalled that he was "pretty drunk". At one stage he heard noise outside and, on checking, saw Wade, who had left the house without his knowledge, "getting belted", with another man swinging punches at him. He said the Camry parked outside looked like it had four men inside.
2. He said that he then crossed Dashmere St and got in between the two men but was hit by the other man, who he realised was George, on his left temple and eye. George threw him to the ground but he got up and George chased him. Wade then pulled up in the Lexus. Jake said that he was in shock, "a bit dazed" and felt petrified. He did not know how it came about but there was almost a collision between the Lexus and the Camry. When the Lexus came to a stop, Jake got out and ran in the opposite direction to that in which it had been heading, but was not sure where he was. The last time he saw George was when George was chasing him in Dashmere St. Shortly after, Wade picked him up in the Lexus and took him home.
3. In cross examination Jake said he did not see Wade grab or hold a knife. He denied that he ran after George and that, earlier, Wade had had a knife in his hand during the scuffle in Dashmere St. He denied that he was involved in George's murder.

The Crown

1. In final address, the Crown admitted that it was most likely Jake who stabbed George, although there was a "slight possibility" that Wade did so. He submitted that it did not however matter who did it because the evidence proved that they were acting jointly "with the desire to cause serious harm to this man, [George], and that was what was done".
2. The Crown submitted that the jury would not accept Jake's evidence that after getting out of the Lexus (in Mulligan St) he ran straight down Mulligan St to Gambier St where he was picked up by Wade driving the Lexus. He submitted that that evidence conflicted with the CCTV evidence from the corner of Mulligan and Gambier Streets and that, instead, Jake must have turned right off Mulligan St and run into Lofty Crescent, before going through the yard of a house in Lofty Crescent and then into the Garnet St backyard where George was later found dead. The Crown submitted that both Wade and Jake had "motive, means and opportunity" but "[u]ltimately Mr Tortell had the best opportunity because the prosecution's submission to you is he was the one who followed, had the best opportunity to follow into Lofty Crescent and follow into Garnet Street". He referred to their "joint action to do serious harm" to George.
3. In relation to the alleged threat made by Wade to Jade on 21 May 2015, the Crown said: "Now there was one other matter that I should refer to in the case of Mr Martinez and that is what occurred on the 21st of May 2015. Do you recall that evidence? The meeting at the supermarket or the running into at the supermarket. You would expect the defence submission to say, well, it's just irrelevant there was some so contact, nothing untoward; you have seen the CCTV footage. Well, have a look at the footage. Have a look the finger [sic] that goes out and have a look at the way in which at that point in time there seems to be something fairly, something being said that you might conclude matches what Jade McVerry is saying. Because what her evidence was is that she is told: "Make sure you keep your mouth shut. I'm watching." Now, a man has been killed. These gentlemen were involved in an incident with this man earlier that evening without doubt in Dashmere Street, Clearly they were also involved in something occurring in Mulligan Street. So when it seems that this Mr Martinez has the opportunity on the 21st of May to speak to Jade McVerry what he says to her is fairly close to what he said to the sister on the night. And that is: 'Make sure you keep your mouth shut. I'm watching.' That, ladies and gentlemen, is a threat. And that in the submission of the prosecution was said because Mr Martinez knew very well what his role was in the killing of the deceased. That is why he said it."

The closing addresses for Jake and Wade

1. Counsel representing Jake and Wade made vigorous and detailed responses to the Crown's case but, save as follows, it is unnecessary for the purposes of this appeal to refer to what they said.
2. In her summing up, the trial judge summarised the effect of the final address on behalf Jake as follows: "Then Mr Chapple addressed you and he emphasised that Jake Tortell was never seen at any stage during this night with a knife in his hand. In order to get from where he was, where the car was in Mulligan Street, to where the deceased was stabbed, he would have had to go over a number of fences. He could not possibly have done all of this if he had been carrying a knife. Also you look at the phone records. They show that Jake Tortell was simply not at 8 Garnet Street at any time that night. He said that there were three no's. Jake Tortell had no motive to harm Mr Garmo, he had no criminal convictions and he had no knife. So he simply could not be guilty of the stabbing."
3. The trial judge referred to parts of the final address on behalf of Wade as follows: "As to the matter of the joint criminal enterprise, [counsel] submitted that it was only after the cars had stopped in Mulligan Street that the two accused realised that George Garmo was in the Camry. So there was simply no opportunity for any agreement relating to a joint criminal enterprise to be reached. Finally, as to the meeting in May of 2015 between Wade Martinez and Jade McVerry at the Greenfield Shopping Centre, she said look at exhibit N, which shows the two of them talking. There is nothing threatening in his body language. It was simply a friendly conversation. [Jade] is making that up."

The trial judge's summing up

1. Prior to the commencement of her Honour's summing up, a discussion occurred, in the absence of the jury, between her Honour and counsel concerning directions to be given to the jury in relation to the evidence of the telephone threat of 14 February and the shopping centre threat of 21 May. After the Crown acknowledged that he had submitted to the jury that the threat (or threats) showed a consciousness of guilt, her Honour said: "Well, I was only going to specifically, I wasn't going to refer to it in terms of lies. I was going to refer to it in terms of that particular episode, that if they accept Jade McVerry's evidence that this happened and that it related to the incident on the 14th of February then they can, they don't have to, but that they can use it as a basis for inferring that the reason for doing it is because of a consciousness of his own guilt. That is the [w]ay I was going to leave it."
2. Her Honour then said that these observations related to the two conversations in May to which Jade deposed. Counsel for Wade indicated that she was "happy with the direction your Honour proposes".
3. After discussion of their contents with counsel, the trial judge provided written directions to the jury.
4. Relevantly, the directions instructed the jury to consider in relation to both Wade and Jake whether George's injuries were inflicted "pursuant to a joint criminal enterprise between them to kill or really seriously injure" George, and, if the answer was yes, to convict them of murder.
5. In relation to Count 2 against Wade, the issue of self defence was put before the jury for consideration but there was no explanation of the "in company" element of the offence.
6. In relation to Count 2 against Jake, the jury was required to consider whether he "was present, encouraging and assisting" Wade in wounding George.
7. In her summing up, which occupied 94 pages of transcript, the trial judge said the following concerning Wade's absence from the witness box: "I come to say something about the right to silence which is a fundamental part of our criminal justice system, namely, that every person accused of a criminal offence has a right to remain silent at all times and no adverse inferences whatsoever can be drawn from the fact that an accused person has elected that right. It would be an empty or a non-existent right, if such an inference could be drawn. When you think of it as a matter of logic, if you got the right and exercise it, clearly no adverse inference can, or should, be drawn. In this case, of course we know Mr Martinez has chosen to exercise that right and not to give evidence. You can draw no adverse inference whatsoever from that fact. As I said, it would be undermining a very significant part of our criminal justice system and making it into a non-existent right if you were to do so. That is a very important matter, members of the jury."

Ground 1: Failing to leave to the jury the possibility of an alternative verdict of manslaughter on the basis of a joint criminal enterprise involving an agreement falling short of intentional infliction of grievous bodily harm

Wade's submissions

1. Wade's senior counsel first pointed out that although the trial judge left the alternative of a manslaughter verdict to the jury, she did so on a limited and presently irrelevant basis (see [49] above). A manslaughter verdict was said to be appropriate on that basis if the jury found that the person who inflicted the fatal stab wounds on George "did not intend to kill or really seriously injure him, maybe because of intoxication", but the jury found that the stabbing was nevertheless an unlawful and dangerous act. A finding that the assailant lacked that intention was not a realistic possibility.
2. Senior Counsel submitted that the jury should instead have been instructed to return a verdict of not guilty of murder but guilty of manslaughter if it: 1. was satisfied that the deceased died as a consequence of the injuries he sustained from an act committed by Jake; 2. was satisfied that at the time Jake committed that act, an agreement existed between Wade and Jake to unlawfully and dangerously assault the deceased, or assault him to occasion actual bodily harm or serious injury falling short of really serious injury; and 3. was not satisfied that Wade's agreement was for the acts committed by Jake to be committed with an intention to cause death or really serious injury even if it was satisfied that when Jake acted he did in fact have an intention to kill or inflict really serious injury on George.
3. She then submitted that the evidence rendered a verdict of manslaughter on this basis viable, for the following reasons: 1. By its verdict on Count 2, the jury demonstrated that it was not satisfied beyond reasonable doubt that Wade intended to cause grievous bodily harm during the first altercation, when he had a knife and ample opportunity to inflict such harm. 2. The jury may not have been satisfied that Wade knew George was in the Camry, or that the chasing and forcing of the Camry to pull over was motivated by that belief. Even if it was so satisfied, the jury may not have been satisfied that Wade was aware that Jake had a knife when he got out of the Lexus on Mulligan St. No one saw Jake holding anything when he commenced chasing George. It is not known what happened to the knife that Wade had earlier, or whether the knife used by Jake to inflict the fatal injuries was the same as that used by Wade earlier, or some other knife. The pathologist's evidence suggested that one wound was by an instrument that was double-sided. Counsel submitted that that must have been a different knife to the one Wade had had earlier. 3. It was not clear at what point Wade and Jake got out of the Lexus relative to George exiting the Camry. It was possible that Wade only became aware that George was fleeing the scene shortly before he separated from Jake (to stop the Lexus rolling back). 4. There was minimal opportunity at that point for Wade and Jake to have agreed to cause George grievous bodily harm. 5. As found by her Honour on sentencing, the evidence established beyond reasonable doubt that Jake inflicted the fatal injuries. The evidence also established that Wade was in the Lexus and was not therefore present at the time. Whilst her Honour was satisfied on sentencing that Jake had intended to kill George at that time, she made no such finding in relation to Wade. 6. It was open to the jury to infer that the savagery of Jake's stabbing went (well) beyond what was intended by Wade at the time he became separated from Jake, particularly when (as stated above) the jury was not satisfied that Wade had such intention during the first altercation and given that Jake had no known history of animosity towards George before that night (such as to alert Wade to the possibility of Jake inflicting the wounds that he did with either an intent to inflict grievous bodily harm or to kill).

Jake's submissions

1. In his oral address, senior counsel for Jake first emphasised that the case was left to the jury as a joint criminal enterprise matter as the Crown left open the possibility that it could have been either Jake or Wade who inflicted the fatal injuries. Because the Crown "couldn't exclude the possibility that [Wade] did it in the case against" Jake, the Crown "were driven to joint criminal enterprise".
2. Counsel for Jake said that the Crown suggested to the jury, expressly or implicitly, that because the stabbing was violent, there must have been an earlier agreement for that level of violence to be committed. He submitted that identifying what the assailant did was however of little assistance in this regard and that the directions of the primary judge were incorrect because they mistook liability for both Wade and Jake as "based upon the intention of the assailant". He submitted there was a real possibility that, if given the opportunity, the jury might have returned a verdict of manslaughter on the basis that the Crown had not proved beyond reasonable doubt that any agreement between the applicants did not relate to a lower level of violence. On the evidence, an alternative basis for manslaughter liability, grounded on an agreement to inflict harm short of grievous bodily harm, was thus reasonably open.
3. Counsel submitted, consistently with what the Crown seems to have implicitly acknowledged to the jury, that the evidence did not allow the jury to be satisfied beyond reasonable doubt that Jake inflicted George's injuries and was therefore guilty of murder because of his direct action. Counsel submitted that on the evidence there was in fact a reasonable possibility that Wade was the assailant. He referred in this regard to the following: 1. the background of grave animosity between Wade and George; 2. the absence of any such background between Jake and George; 3. the initial confrontation on Dashmere St being between Wade and George, during which Wade was armed with a knife, swung the knife at George and wounded him; 4. following the confrontation on Dashmere St, Wade drove the Lexus in an apparent pursuit of George; 5. whilst driving, Wade was seen still to be in possession of a knife; 6. On Mulligan St, Wade caused the vehicle in which George was travelling to stop its forward motion by pulling the Lexus in front and applying the brakes; 7. Wade was seen still to be in possession of a knife as he got out of the Lexus on Mulligan St; 8. Jake was seen to run down Mulligan St in the same direction as George but was not seen to be in possession of a knife or a weapon; 9. after initially running down Mulligan St in the same direction as Jake and George, Wade returned to the Lexus and applied the handbrake, before getting into the car and driving in the direction that Jake and George were seen to go; 10. the events in and around 8 Garnet St which resulted in the death of George were not known; and 11. the Crown's suggested timeframe in which the killing took place did not definitively resolve the issue of who had inflicted the fatal injuries.

The Crown's submissions

1. The Crown submitted that a manslaughter verdict, on the basis of an agreement for the infliction of a lower level of injury than grievous bodily harm, was not viable on the evidence. In respect of the six matters referred to at [58] above, the Crown submitted (using the same subparagraph numbers as in that paragraph): 1. There was no reason to conclude that Wade's earlier intention (held at Dashmere St) remained the same when he reached Mulligan St and exited the Lexus (although compare (4) below). 2. There was ample evidence that Wade knew that George was in the Camry and Wade was seen to have a knife in his hands as he was driving the Lexus. As to whether Wade was aware that Jake had a knife and that the knife Jake used may have been different from that used by Wade during the altercation in Dashmere St, the Crown pointed out that Dr Duflou's evidence was simply that it was possible that the knife that caused one of the injuries to George was double-edged. The knife used by Wade, a kitchen knife, was not doube-edged. The Crown submitted that it was highly unlikely that the assailant used two large knives and that it was most likely that Jake took with him the knife that Wade had already used and had had with him in the car. The Crown also pointed out that in light of Dr Duflou's evidence, infliction of the stab wounds would likely have left blood on the assailant and that the non-assailant, whether Wade or Jake, would have seen blood on the other and probably guessed what had occurred. If the stabbing had not occurred pursuant to a joint criminal enterprise, it was unlikely, the Crown submitted, that the applicants would in these circumstances have spent the next two and a half hours together. 3. The Crown submitted that the obvious point of the applicants' chase of the Camry was to "get at the deceased" and Wade would have been focussed on what George was doing after the two cars stopped. 4. The Crown pointed out that it was not its case that there was "a meeting of the minds" when the cars stopped in Mulligan St. Rather, its case was that the joint criminal enterprise had commenced when George was first wounded by Wade in Dashmere St. It also referred to the evidence of the local resident who saw two men (Wade and Jake) who chased another (George) in Dashmere St and then stopped for a brief discussion before returning to the Lexus. 5. The Crown submitted that there was "absolutely no reason for Mr Tortell to stab the deceased with a 'savagery' which 'went well beyond what was intended by Mr Martinez'". It referred in particular to Jake's absence of motive to harm George, and Wade's strong motive to do so. Further, it said that the limited nature of Wade's stabbing of George in Dashmere St, in front of a number of witnesses, said little about his intention after the chase into Mulligan St.

Legal Principles

1. The following authorities are of particular relevance to the issue raised by this ground of appeal.
2. In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 the appellant drove the victim and his two co-accused, who included his brother, to a remote place. The victim died as a result of a brutal assault, probably by the appellant's brother. The appellant's case at trial was conducted on the basis that he was not present when the assault occurred and that all that he knew beforehand was that his brother intended to assault the victim. The appellant was convicted of murder but it was common ground in the Court of Appeal of Queensland that manslaughter should have been left to the jury as a possible verdict. The Court of Appeal however held that the appeal should be dismissed on the ground that no substantial miscarriage of justice had occurred. The High Court reversed this decision.
3. The majority of the High Court (Gleeson CJ and Gummow and Callinan JJ) held that a rational jury, properly instructed, could have failed to reach the state of satisfaction necessary for a conviction of murder, thereby rendering the possibility of manslaughter open on the evidence. In doing so, Gleeson CJ and Gummow J referred with approval to the following observation, cited in R v Jackson [1993] 4 SCR 573 at 593, of Lord Tucker in Bullard v The Queen [1957] AC 635 at 644: "Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached."
4. In Gilbert, Gleeson CJ and Gummow J observed at [13]-[17] that whilst courts assume that juries understand and follow directions given by a trial judge, it should not be assumed that juries' decision-making is "unaffected by matters of possible prejudice". Thus, their Honours indicated that an appellate court must not "assume, on the part of the jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences". Whilst a jury may "hesitate to acquit" it may be "glad to take a middle course which is offered to them" by the availability of a manslaughter verdict.
5. In Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64, the appellant remained in a car whilst his co-accused got out of the car, walked into a workshop and shot and killed two men. The appellant and his co-accused were convicted of murder.

Determination

1. It was open to the jury not to be satisfied beyond reasonable doubt as to the identity of the assailant. In the case of Wade, his arguable lack of opportunity to assail George in Garnet St was an obvious basis for that lack of satisfaction. The evidence clearly established that around the time of George's death, Wade was driving the Lexus. If he had an opportunity to kill George, it was a very limited one indeed.
2. Even allowing for a 90 second period between the two appearances of the Lexus driven by him on the CCTV cameras, it seems unlikely that within that period he could have driven along Gambier St to Garnet St, got out of the vehicle, stabbed George eight times, returned to the vehicle and driven it from Garnet St back along Gambier St to its intersection with Mulligan St. Although Wade had a strong motive to attack George, and such an attack would arguably have been consistent with the preceding events in Dashmere and Mulligan Streets, it is improbable, although possible, that Wade had the opportunity to do so.
3. On the other hand, the evidence at least arguably pointed to Jake as the assailant. It was he who chased George along Mulligan St, seemingly into Lofty Crescent, and had the opportunity to stab George at 8 Garnet St. The DNA evidence indicated that he had George's blood on his clothing and that his DNA was on George's finger nail.
4. Nevertheless, as Jake's counsel submitted on appeal, there were reasons why the jury might not have been satisfied beyond reasonable doubt that Jake was the assailant. These reasons were: 1. There was no evidence of any prior animosity between Jake and George, whereas there was such animosity between Wade and George. 2. On the evidence, the only possible motive that Jake therefore had to kill George was that he may have wished to give effect to the animosity of his friend Wade towards George. The jury may however have taken the view that a savage attack on George involving eight stab wounds was an extreme and therefore unlikely manner for Jake to achieve that vindication, particularly when there was no evidence that Jake knew of that animosity until at most a few minutes earlier (that is, when the altercation occurred in Dashmere St). 3. It was Wade rather than Jake who showed aggression towards George in the period leading up to George's death and it was Wade who wounded George with a knife in Dashmere St, who drove the Lexus in apparent pursuit of George in the Camry, who was, on Nicole's evidence, still in possession of a knife when driving, who swung the Lexus in front of the Camry to cause it to stop and who, again on the evidence of Nicole, was seen to have a knife in his hand when he got out of the Lexus in Mulligan St. 4. There was no direct evidence that Jake was at any time in possession of a knife. 5. The evidence that Jake was the assailant was purely circumstantial, there being no direct evidence of the events that occurred in Garnet St. 6. The Crown did not exclude beyond reasonable doubt the possibility that Wade had the opportunity to assail George. The CCTV camera evidence (see [64] above) indicated that there was about a minute or perhaps a minute and a half between the Lexus driven by Wade turning into Gambier St and then returning along Gambier St to Mulligan St. It is possible that Wade stabbed George in that period.

Ground 2: Failing to give appropriate directions concerning consciousness of guilt evidence

1. In his closing address, the Crown referred to Jade's evidence of what Wade said to her on 21 May 2015 (see [27] above) as a threat, made because Wade "knew very well what his role was in the killing of the deceased" (see [35] above). He also made it clear to the jury that Wade's alleged statement on 14 February 2015 to Krystal to "keep [her] mouth shut" was in the same category (at [36] above). Later in his address, he referred again to the 21 May 2015 statement and suggested that the jury could use it as assisting to prove either or both charges, that is, the murder and wounding counts on the indictment.
2. In her summing up, the trial judge instructed the jury that if it accepted Jade's evidence as to what Wade said on 21 May 2015 it could use it as evidence that he "had a consciousness of his own guilt at that time in relation to the events of 14 February" (see [41] above).
3. In the absence of the jury, the Crown submitted that fuller directions should be given concerning the evidence relied on as manifesting a consciousness of guilt. Wade's counsel did not make any relevant submission and her Honour did not give the jury any further directions on that topic.
4. On appeal, Wade submitted that a full direction in accordance with Edwards should have been given.

Relevant legal principles

1. Edwards was concerned with lies allegedly told by the accused when giving evidence at his trial. The majority made the following observations (at 210-1): "A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt. A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation (for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect".

Ground 3: Failing to give appropriate directions concerning the absence of evidence from Wade at the trial

1. Jake gave evidence at the trial but Wade did not. In her summing up, the trial judge made two references as follows to the absence of evidence from Wade. In the first, quoted at [47] above, her Honour instructed the jury that it was not to draw any adverse inference "whatsoever" from Wade's exercise of his right to silence. Her Honour repeated that later, in the passage quoted at [48] above.
2. Wade's trial counsel did not request any further direction and, on appeal, the Crown relied on r 4 of the Criminal Appeal Rules to contend that Wade should be precluded from complaining of the absence of any further direction.
3. In Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, the Crown tendered at trial the transcript of a police interview in which the accused denied the allegations against him, but the accused did not give evidence. The trial judge inappropriately suggested to the jury that the fact that the accused did not give evidence was a reason to find him guilty of the offence charged. The Court found that the direction contravened s 20(2) of the Evidence Act 1995 (NSW) which is in the following terms: The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
4. Further, the majority of four judges stated the following at [51]: "In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."

Ground 4: Whether Wade's conviction on the statutory alternative to Count 2 was unreasonable, particularly in light of Jake's acquittal on Count 2

Ground 5: Failing to give an appropriate direction concerning the meaning of "in company" on Count 2

1. Wade was convicted on the statutory alternative to Count 2, namely, reckless wounding "in company". The trial judge did not give any directions to the jury as to the meaning of "in company" other than to say, after referring to that element of the offence, "obviously the company would be Jake Tortell" (see [52] above).
2. As the Crown accepted on appeal, an offence is only committed "in company" if the person in whose company the offence was committed was physically present and shared a common purpose with the accused to commit that offence (R v Button (2002) 54 NSWLR 455; [2002] NSWCCA 159 at [120]; White v The Queen (2016) 261 A Crim R 302; [2016] NSWCCA 190 at [15] and [82]-[91]). In this context a person shares a common purpose with the principal offender if the person is a party to a joint criminal enterprise with the principal offender to commit the offence or if the person, being present when the crime is committed, aids and abets its commission by assisting or encouraging the principal offender. The trial judge's instruction to the jury at [52] above implied that the presence of Jake when Wade committed the wounding was sufficient. This was incorrect. Accordingly Wade's conviction for wounding "in company" must be quashed. The misdirections identified in Ground 2 and, arguably, 3 provide additional reasons for taking that course.
3. Wade also submits on appeal that his conviction of that offence should be found to have been unreasonable, with the consequence that no new trial should be ordered and that he should be acquitted of the offence. He submits in this regard that a conclusion of unreasonableness is the consequence of the jury's acquittal of Jake on Count 2 and its statutory alternative.
4. Wade submits, in my view correctly, that, bearing in mind that the Crown did not contend that Jake himself wounded George, the jury's acquittal of Jake on Count 2 must mean that it was not satisfied that Jake was "in company" with Wade for the purposes of Count 2. The acquittal cannot be attributed to any inadequacy of the trial judge's directions concerning Count 2 against Jake because her Honour properly instructed the jury, in writing and orally, that to find Jake guilty on Count 2, it would have to find that Jake was "present, encouraging and assisting" Wade when he wounded George, the Crown not having alleged that the wounding occurred pursuant to a joint criminal enterprise. The jury verdicts at the joint trial thus conclusively determined that Jake was not acting "in company" with Wade at the time of the wounding. It follows that they also established the corollary, that Wade was not "in company" with Jake. The conviction of Wade of reckless wounding in company was therefore unreasonable. As a result Wade cannot be retried for an offence involving the "in company" element and a verdict of acquittal should be entered.

Orders

1. For the above reasons, I propose the following orders: 1. Grant the appellants leave to appeal to the extent necessary. 2. Allow the appeals. 3. Quash both the appellants' convictions of murder (Count 1 of the Indictments). 4. Direct retrials of the appellants on the charges of murder on which they were convicted. 5. Quash Wade Martinez's conviction of the offence of reckless wounding in company (the statutory alternative to Count 2 in the Indictment against him). 6. Acquit Wade Martinez of that offence of reckless wounding in company. 7. The matter is listed for mention in the Supreme Court Arraignments List on 12 July 2019 or such other date as directed by the Criminal List Judge.
2. R A HULME J: I agree with Macfarlan JA.
3. ADAMSON J: I agree with Macfarlan JA.

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