Matthews v R

Judgment 1HOEBEN CJ at CL: Background On 2 April 2013 the applicant was indicted for the murder of Scott Miller before Acting Justice Mathews. He entered a plea of not guilty. Thereafter, the trial proceeded until 11 April 2013 when the jury retired to consider its verdict. On 16 April 2013 the jury returned a verdict of guilty of murder. On 27 May 2013 Mathews AJ sentenced the applicant to imprisonment with a non-parole period of 11 years and a balance of term of 5 years (Regina v Matthews [2013] NSWSC 659). 2The applicant appeals against conviction only. The sole ground of the appeal is that "the verdict of the jury that the applicant was guilty of murder is unreasonable and cannot be supported by the evidence". This ground of appeal raises issues of fact and as a result, the appeal requires the leave of the Court. Because there are real factual issues to be considered by the Court, I would grant that leave. 3The indictment asserted that on 22 February 2011 at Darlinghurst in the State of New South Wales, the applicant did murder Scott Miller. The Crown case was that early in the evening of Saturday 19 February 2011 a fight took place between the applicant and the deceased in the vicinity of Taylor Square, which culminated in the applicant punching the deceased heavily in the face or head. The deceased fell back and probably hit his head on the iron railing of a pedestrian fence before falling to the ground. Unknown to anyone, including the deceased, he had an aneurysm in his brain which burst upon one of these impacts, probably as the result of a punch. This caused an immediate and severe brain haemorrhage. He was taken to St Vincents Hospital where he was placed on life support. The support was withdrawn on 22 February 2011 and the deceased died shortly afterwards. 4Most of the evidence at the trial came from witnesses who had observed at least part of the conflict between the applicant and the deceased. Because this confrontation took place in a well frequented public area, there was no shortage of eye-witnesses. Thirteen people described their observations of relevant events and the applicant also gave evidence. Not surprisingly, in relation to events which happened quickly and unexpectedly, there were significant discrepancies between these accounts. 5Both the deceased and the applicant were much the same age - about 37 years old at the time. Both were very fit, having made a point of maintaining their physical fitness. In that regard, the deceased was 1.85 cm in height (approximately 6 foot 3 inches), weighed 85.5 kilograms (13 stone 5 pounds). The applicant was approximately 178 cm tall (5 foot 10 inches) and weighed 78 kilograms (12 stone 4 pounds). The deceased had a completely shaven head. 6The following matters appear to be uncontroversial. The applicant and the deceased were acquainted with each other as they had a number of mutual friends. There seems to have been underlying tension between them. The evening before the killing, an incident took place at the Courthouse Hotel at Taylor Square. The deceased apparently had "issues with money", having previously been a problem gambler. On this occasion, the applicant was openly displaying a large amount of cash. The deceased said to him "Stop throwing it around. I don't need to see it". The applicant responded "Mind your own business, I can do what I want". The incident ended there but it seems to have left an impression on both of them. 7On 19 February the applicant went to the Courthouse Hotel at about 8.30 or 9am. He was joined an hour later by Jayson Bell. He then left the hotel in order to organise himself and take his son for lunch at Chinatown. He estimated that he would have drunk three or four schooners of beer during the course of the morning. He returned to the hotel at about 2pm and remained there until 6.30pm. During that time he was again talking to and drinking with Jayson Bell. He described himself as "drunk, but not overly drunk". At 6.30pm Mr Bell told him that he was going home for a meal and the applicant also decided to leave and go to his own home. 8The deceased came to the Courthouse Hotel earlier that afternoon. He was sitting in the courtyard area at the front of the hotel when Mr Bell and the applicant passed him on their way out. The deceased and Mr Bell were close friends and lived in the same apartment block in Surry Hills. Mr Bell told the deceased that he was going home and suggested that he come too. Mr Bell and the applicant then continued to walk south along the pedestrian extension of Bourke Street until they were near the front of Kinselas Hotel. At about that point, the deceased came up to the applicant and according to Mr Bell said words to the effect "What is your problem? What have I done? I've done nothing to you". He then moved a short distance away. The applicant said to Mr Bell "I don't like this bloke". 9Thereafter, there is a considerable difference in the evidence given by the witnesses. The predominance of the evidence, however, is to the effect that shortly after the verbal confrontation, a physical fight started between the two men with punches being thrown on both sides. During the course of the fight, they moved from their initial location near the front of Kinselas Hotel east towards Flinders Street, then south along the side of a building known as "T2". It was here that the fatal blow was struck by the applicant. 10After the deceased was lying on the ground, there are accounts of the applicant stomping on his head or on the upper part of his body. 11The Crown case largely depended upon the first eyewitness to give evidence, Anthony Whiting, who had been a close friend of the deceased for many years. His evidence was to the effect that the applicant was the aggressor at all times, had attacked the deceased from behind, had said during the course of the fight "I will kill you" and after the deceased fell back against the pedestrian railing, had stomped on his head on about six occasions. The competing cases at trial 12It was the Crown case that the applicant was guilty of murder since the aneurysm ruptured when the applicant punched the deceased in the head with the intention to kill or inflict grievous bodily harm upon him and the punching was not done in self defence or as a consequence of any substantial impairment from which the applicant suffered. Alternatively, it was the Crown case that the applicant was guilty of manslaughter by reason that the punch to the head of the deceased was an unlawful and dangerous act, was not done in self defence or as a consequence of any substantial impairment which the applicant suffered. 13It was the defence case that the applicant was not guilty of murder since when he punched the deceased to the head and the aneurysm ruptured, he did not intend to kill or inflict grievous bodily harm upon the deceased. Alternatively, the applicant was not guilty of murder because the rupture of the aneurysm occurred when the applicant was acting in self-defence and his actions were not excessive. Alternatively, the applicant was not guilty of murder but guilty of manslaughter because although he was acting in self defence, his actions were excessive. Alternatively, the applicant was not guilty of murder but guilty of manslaughter because at the time of his actions, the applicant's capacity to understand the events and provide an appropriate response thereto were substantially impaired by an abnormality of the mind from an underlying condition, namely post traumatic stress disorder and the impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. 14All of those issues were not argued in the appeal. Their existence, however, is relevant to the ultimate disposition of the appeal. As indicated, the appeal focused on the evidence as to intention and as to whether the evidence was capable of establishing that the applicant had an intention to kill or inflict grievous bodily harm. The issue was whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant intended to either kill or inflict really serious injury on the deceased. It was the applicant's submission that the jury should have had a reasonable doubt and so should this Court. The evidence as to intention 15At trial, three pieces of evidence were relied upon as evidence that the applicant had the requisite intention: (i) That the applicant punched the deceased from behind. (ii) That the applicant said "I will kill you" during the course of his attack on the deceased. (iii) That the applicant stomped on the head of the deceased approximately six times from a height of approximately two feet. This evidence came from Mr Whiting. 16In the appeal, the Crown relied upon the same evidence but submitted that even if the evidence of Mr Whiting that there were six stomps to the head of the deceased ought to be substantially discounted, it was still open to the jury to find the applicant guilty of murder because other evidence established beyond reasonable doubt that he had the requisite intent: (a) The evidence of other witnesses concerning stomps/kicks. (b) The concession by the applicant that he had stomped once on the upper chest/arm of the deceased to prevent him getting back to his feet. (c) The evidence that prior to the first fight, the applicant had told Mr Bell that he did not like the deceased. (d) The evidence that the applicant initiated the first fight with the deceased. (e) The evidence that the applicant got back to his feet and pursued the deceased. (f) The evidence that adjacent to the T2 building, the applicant initiated the second fight by punching the deceased from behind. (g) The evidence that in the course of the altercation adjacent to the T2 building, the applicant, who maintained a fighting position as the deceased backed away from him, put his hands down by his side and turned away from the applicant and towards Oxford Street. (h) The evidence that Messrs Doughty and Fanning had to restrain and remove the applicant as the deceased lay upon the ground. Mr Anthony Whiting 17He had been friends with the deceased for about 8 years. On Saturday, 19 February he was walking through Taylor Square when he saw the deceased near the old T2 building. He then observed the applicant, who was slightly behind the deceased, to punch the deceased several times in the side or back of the head with a closed fist. The deceased then struck the applicant with his right fist and knocked him to the ground. The deceased then walked away. The applicant lay on the ground near T2 for about 10 - 15 seconds. The applicant got to his feet and threw three or four punches to the side and back of the deceased's head. The deceased fell to the ground and as he lay there, the applicant stomped on his head. He raised his foot and stomped down from a height of approximately two feet. The applicant did not stomp on any other part of the deceased, just the head. He estimated that the applicant stomped on the deceased's head six times. 18Mr Whiting said that when the applicant got to his feet, he said "I'll kill you". He appeared to be in a rage about being knocked down and ran at the deceased from behind. After the deceased fell down, he was just lying on the ground unconscious and the applicant "just stomped and stomped and stomped". When somebody in the crowd said "Run the police are coming", the applicant ran off with an associate. Mr Whiting said that the applicant was stomping using one leg and that he was wearing shoes, but he could not tell the type, brand or make. Mr Whiting said that he also heard the applicant say "I'm going to kill you" right at the beginning as the initial punches were thrown. The deceased did not say anything in response. The deceased was lying unconscious on his side facing T2 and the applicant was stomping on the left side of his head. Before witnessing these events, Mr Whiting had not been drinking or using any substances that might have affected his observation. 19In cross-examination Mr Whiting said that it was the applicant who threw the first punch and he disagreed that the applicant and the deceased were facing each other at the time. Mr Whiting agreed that this evidence was different to the evidence which he gave at the committal proceedings on 13 June 2012 when he agreed that the two men were facing each other when the first punch was thrown. Mr Whiting said he must have been mistaken when he gave that evidence. Mr Whiting agreed that he gave the following evidence at the committal: (a) The two men were side by side, or the applicant may have been half a foot ahead of the deceased. (b) Something verbal was said between the two men before punches were thrown but Mr Whiting was too far away to hear what it was. (c) The applicant only said "I'll kill you" once after he was knocked to the ground. 20Mr Whiting said that at the time of the committal he was under emotional stress due to the nature of the crime and that this had unnerved him. He now felt that he had not given enough details at the committal. The applicant in fact had said "I'll kill you" once during the initial blows and again when he got back up and was punching the deceased the second time. Mr Whiting agreed that in his police statement of 27 February 2011 he only indicated that the applicant said "I'll kill you" before the applicant was knocked to the ground. Mr Whiting agreed that he was now saying that what he said in his police statement and at the committal was wrong and that the applicant said "I'll kill you" twice. 21Mr Whiting disagreed with what he said in his police statement and now denied that the applicant was in front of the deceased when the applicant threw the second lot of punches. Mr Whiting said "I may have said that he was in front but he was never in front it was from behind, it came from behind the second attack" (T.75). Mr Whiting said that the evidence he was giving at the trial was more accurate and that when he made his police statement he was still in shock and emotionally distraught. He said that when the applicant was stomping on the deceased, he was using all his force (T.78). 22Mr Whiting denied that he was embellishing and exaggerating his account of the incident because the deceased was a friend. He denied that the deceased threw any punches after the applicant punched him the second time. He denied that they were exchanging punches. He denied that the applicant only delivered one stomp and that this was to the deceased's upper body. He disagreed that he had exaggerated the number of stomps administered by the applicant to the deceased. Mr Ian Eyers 23At 6.35pm Mr Eyers and his wife had parked their car and were walking towards Taylor Square when he saw a tall, bald man in his early thirties walk around the corner towards them with a girl. He did not take a great deal of notice because he was talking to his wife at the time. The first couple were followed by two men. He thought the first two were a couple because he was pretty sure they were arm in arm. In relation to one of the two men behind: "Q. Did you see either one or the other men doing anything with respect to him? A. I think I did, but that is a bit hazy, I am not one hundred percent sure. Q. Tell us what you remember? A. I think I saw him swing with his right hand, come across the face of the other guy from behind but, like I said that is a bit hazy I am not one hundred percent because I was actually looking at the police car on the right. Q. When you say the other guy do you mean the bald man or one of the two men? A. One of the two men because the bald guy was in front. ... (T.84) 24Mr Eyers' evidence continued: "Q. And you told us a moment ago that you seemed to recall one of the two men swung a punch, towards him from behind? A. Yes. Q. What effect did that have on the bald man, what happened next, in other words? A. He just went down straight away. Q. What did he fall near, or against? A. Right, just before a tree, right next to the railing and I'm pretty sure there was some sort of metal grate under him. Q. Once he was on the ground what happened next? A. I looked towards the police car and - because I was thinking of getting my wife away in case they come towards us, when I looked back one of the guys was in the position of jumping. Q. Tell us about this jumping, what was the man doing and what was he jumping on, in other words? A. He was jumping on the guy on the ground and when I say in the position, I think that he had a hold of the railing because the position he was in would be to jump in, just stood up and jump. Q. What part of the man on the ground was this person jumping on? A. The upper part of his body. Q. How many times, did you see him jump? A. Once." (T.85) 25In cross-examination Mr Eyers agreed that he did not actually see the person jump. He saw him "coming down" (T.87). He agreed that what he saw occurred very quickly. Mr Eyers made his statement to the police on 17 March 2011 and he agreed that his memory would have been better then than it was at trial. It was put to Mr Eyers that he had made no mention of a punch from behind in his statement. In that regard, the following evidence was given: "Q. Is that because you couldn't remember at that time? A. I honestly didn't think about it at that time I just - since then I have mulled over it in my mind a thousand times and every time you do it changes, so you know I was just trying to remember as best I can and from the statement I did. Q. I understand. Obviously it is very important what you say now. Do you accept that because you thought things through in your mind you might be mistaken about that aspect of seeing the arm? A. It is possible." (T.90) Mr Jayson Bell 26Mr Bell had known the deceased for 17 years and they were good friends. He had known the applicant as an acquaintance for 6 to 8 months. Mr Bell met the applicant at the Courthouse Hotel at about 10am or 10.30am. He also saw the deceased at the hotel later that day at about 2pm. Mr Bell was drinking schooners of full strength beer and had drunk about 5 or 6 schooners that day. At about 3pm or 4pm when he stopped drinking, he rated his sobriety at about 5 out of 10. He said that the applicant was also drinking schooners of full strength beer. He rated the applicant's level of intoxication at about 6 or 7 out of 10 when he left the hotel. 27At about 6.30pm Mr Bell walked from the front of the hotel with the applicant, with the intention of going home. Because he and the deceased lived in the same block of flats in Surry Hills, Mr Bell told the deceased that he was going home and for him to come with him. The following evidence was then given: "Q. What happened next? A. Scott went up and was walking. I was walking with Adam. Scott turned the corner near with Kinsela's as Adam and I were walking. I told him, Adam said he was going, said Scott and I were going home to have a feed. All I remember is Scott coming over saying to Adam, "What is your problem? What have I done? I have done nothing to you." And Adam saying to me, "I don't like him". And I was pushing Adam just saying, "Look, just go away, don't worry about it." Next thing I know they're fighting. Q. Tell us what you saw happen when you say they were fighting? A. Just basically punches were thrown to each other. Q. Where did this happen? A. Started just beside Kinselas, just near the tree. There was punches thrown there, and then I think it went for a minute or two and then the fight stopped." (T.99) 28Mr Bell thought it was the applicant who threw the first punch and that when he did so the deceased retaliated straight away. He did not see either man knocked to the ground. He was not taking much notice at that stage. All he remembered was that the fight restarted. They looked at each other and came back and just started again. He saw the police over by the chemist and shouted for them to come over. When he turned back, the fight was continuing but people were in front of him and he did not see what else was happening. He could not say who threw the first punch when the fight started again. When the fight restarted, the two men were facing each other. Mr Bell heard yelling from one of the girls. She was screaming "Call the police, call the police" (T.101-102). Under cross-examination Mr Bell confirmed that evidence and said that before the two men became involved in the fight, they were both standing opposite each other with their hands raised and that there was some shouting between them. During the course of the fight, the two men were moving. They moved towards Flinders Street and ended up around T2. Mr Bell agreed that the fight seemed to stop for a while but by then he was a little distance away and was not in the best position to see what was going on as other people were blocking his view. He was not able to say much more about what happened. Ms Carly Austin 29Ms Austin had known the deceased for a couple of years as an acquaintance. On Saturday 19 February 2011 she had the day off but had been drinking since lunchtime and by the end of the day she was intoxicated. At about 6.30pm she was standing near the open door at Kinselas with a group of friends when she saw the applicant and the deceased walking away from the Courthouse Hotel and then a couple of minutes later, an altercation began. There was yelling and it escalated into a bit of a fist fight. She could not hear what they were saying to each other, she remembered seeing them fighting and moving around and saw the deceased fall near the fence by Flinders Street (T.141-142). 30She said that after Scott Miller fell, the applicant kicked him. She could not remember whether this was as the deceased was falling or was on the floor. She said that she observed the deceased to be holding his hands up, palms forward, as though indicating he did not want to fight. 31In cross-examination she agreed that she had been drinking all that day. She said that she did not see the applicant knocked to the ground at any stage. She thought she saw the deceased fall and hit the railing. She agreed that she thought she saw a kick by the applicant, but it was difficult for her to say with certainty with what part of the deceased's body contact was made. She accepted that the kick may well have been to the upper torso area or the upper arm. She said: "Q. So seeing what you later indicated on that page, or what you used to refresh your memory, you had seen Scott swing a punch, is that right? Just for the record can you say yes? A. Yes. Q. Do you accept that from the distance that you were, and your intoxication, it's hard for you to say with certainty that he was putting up his hands, do you accept that? A. He may have. Q. So you are saying he may have put up his hands, like stop, but you might be mistaken about that, is that right? A. I don't remember. Q. Okay. A. I'm saying, not really a lot of memory and everything, and on the day, as I said, it all happened so quickly. Q. That is quite important that aspect, you do accept that maybe you are mistaken about that, is that right? A. I thought, I could see them fighting and everything like that, and yeah, I am pretty sure. Q. Things are happening fairly quickly? A. Yes. Q. And you were quite intoxicated? A. Yes. Q. And you were a long way away? A. (No verbal reply) Q. And you accept in those circumstances that you can't be sure about that, is that right? A. Yes." T.154) Mr Daniel Doughty 32Mr Doughty had known the deceased as an acquaintance for 5 years. He also knew the applicant as an acquaintance for about 6 or 8 months. He said that by 6.30pm that day he had drunk about 10 schooners of VB beer and considered himself intoxicated. He remembered that a fight broke out, but he could not remember anything else. He was then cross-examined by the Crown pursuant to s38 of the Evidence Act 1995 and taken to various parts of his interview with the police. The following questions and answers were given in that interview, which took place on 19 February 2011. "Q64 Fight's started here or here? A. No, it's the fight started here. Q65 Yeah. A. Out the front of Kinselas. Q66 Yeah. A. Like verbal. Q67 Verbal yeah? A. Yeah. Do you know what I mean, then verbal, verbals. They've gone around the corner, they've both shaped up and then started fighting each other. Q68 Do you know who initiated the fight? A. Adam yeah. Q69 Adam, do you know how he initiated it? A. By chasing Scott down. Q78 Yeah. A. Yeah. Q71 And did he, how did he physically hurt him like did he punch him what happened? A. Well they were having a fight and Adam's hit him with a right hand, Scott's fell down, and when Scott's fell down, Adams' jumped on his head three times. Q72 Okay, before earlier on you said when Adam hit Scott he fell on the railing? A. Yes. Q73 Yes, where's this railing? A. Railing is on Flinders Street next to T2. Q 74 So from what you could tell, it was the punch that made him fall and hit on the railing? A. Yes and no, yeah. I think it was when he jumped on his head was the main, yeah, the main cause of it. Q 75 No, no, no, as in I am just trying to get how Scott hit his, hit his, hit himself on the railing? A. When Adam's hit him he's sort of in a daze, he sort of fell back on to the railing. I am not exactly sure if he's hit his head or whatever. Q 76 Yeah, A. But yes and no, do you know what I mean? Q 77 Yeah. A. And then Adam's jumped on his head when he's on the ground, so-- Q 78 When he was jumping on Scotts head, where were you? A. I pulled Adam off him. Q 79 So you were pretty much-- A I grabbed him. Q 80 Right there? A. Yeah, I grabbed him yeah and said, what the fuck are you doing, do you know what I mean? Q 81 Okay, how many? A. Like, the bloke's out cold. Q 82 How many, how many times did Adam jump on Scott? A. Three times. Q 83 And whereabouts? A. What do you mean 'whereabouts'? Q 84 Whereabouts on Scott's body? A. On his head. Q 85 And what feet did he use? A. Fuck, you're getting into some details now. Q 86 Would it be his-- A. Right foot, I suppose, yeah. Q 87 What was Adam wearing at the time shoes-wise? A. Thongs. Q 88 And when he was jumping on him, what was Scott, what was he saying anything, did he? A. Out cold. Q 89 Yes, so at what point did you-- A. He was limp, he was out cold, yeah. Q 90 Yeah, so at what point do you think you saw Scott unconscious? A. When Adam was jumping on his head. Q 91 Okay, so after the three jumps, you've stopped Adam? A. Yeah. He's kicked him and he's jumped on him, kicked him, then jumped on his head twice, and I, then I've pulled Adam back up and grabbed him, pushed him away, and that's when a police officer, a police officer had come because there was an incident at the chemist or something. There was a hold up there or something." (T.165 - 167) 33When those questions and answers were put to him, Mr Doughty agreed that they had been read out correctly and that they were the answers which he had given to the police on 19 February 2011. He agreed that he had seen some of the fight happening and that what he had told the police was the truth. 34In cross-examination the following evidence was given: "Q. Were all those things that were read to you, were they things you actually saw yourself, or were you telling the police things that you had been told by other people? A. I've been told. I was the last person to make a statement. Q. Okay. So do you know whether the people who told you had actually observed the fight themselves? A. Yes and no. Q. You spoke to more than one person, is that right? A. Yes. Q. And did you believe it to be the truth that Adam Matthews had jumped or stomped on the male's head? A. No, that's what I heard. Q. That's what you heard? A. Yeah." (T.168) 35Mr Doughty agreed that he had been drinking that day and at the committal he had given evidence that he may have consumed as many as 20 beers. He said that when he was being interviewed by the police, he was still feeling the effects of the alcohol and some illegal substances which he had taken that day. He agreed that at the committal hearing on 13 June 2012 he had answered that he could remember the applicant kicking the deceased but he could not recall the applicant jumping on him. The following evidence was given on that issue: "Q. And you were asked whether you saw whether he jumped on him, and you couldn't recollect that either? A. Mm. Q. You were asked then whether you thought that you may have said those things because you were affected by alcohol or another substance, and you agreed with that? A. Mm. Q. You agree you said that at the committal? A. Yes. Q. And they weren't things that you actually saw? A. No. Q. And I asked you whether you were being truthful at that time when you said that? A. Mm. Q. And you said you were, you said yes, you agree with that? A. Yes. HER HONOUR: Can I just ask one question here because it troubles me. Q. You say you were telling the police what other people told you? A. What I heard. Q. But you told the police that you yourself pulled Mr Matthews back? A. Yeah, grabbed him, that was at the end of it. Q. Now, did that happen or didn't it? A. Yeah that happened. Q. You weren't told that then? A. No." (T.170) Mr Doughty said it was all so quick and fast. He just grabbed and pushed the applicant out of the way and "that was it". Dominic O'Keefe 36Mr O'Keefe gave evidence that he was having a drink outside Kinselas at about 6pm. He saw the deceased having a confrontation with another person whom he did not know. He said to the deceased "just walk away". Mr O'Keefe did not move from where he was sitting and the fight moved around the corner. 37Under cross-examination he said that he was on medication which affected his memory. He could not remember what he had said in his statement and he could not remember other details of what had occurred. It was put to Mr O'Keefe that in his statement of 22 March 2011 he had said that the following events occurred: (a) He told Scott to "just walk away". Scott looked over but did not respond. (b) Scott and the other guy shaped up to each other and began to fight. (c) The fight moved towards Flinders Street. (d) At some stage both of them fell or slipped to the ground. Brendan Fanning 38This witness was unavailable to give evidence. The police interview with Mr Fanning on the evening of 19 February 2011 was played and a transcript was provided to the jury (exhibit G - DVD and transcript). Mr Fanning was at the Courthouse Hotel that afternoon. He left about half an hour before the incident and went to Kinselas Hotel with a friend Dan and Dan's girlfriend, Carly. He heard Carly screaming for somebody to call an ambulance and walked over from Kinselas towards the railing and saw the end of a fight between the deceased and the applicant. He did not actually see any hits, he just noticed the applicant in front of the deceased and then the deceased go down. "I've um seen ah Scott sort of get hit and I think the hit might have knocked him out 'cos he fell backwards and hit his head on the like, on the railing of on Flinders Street at the corner of Taylor Square there. Um and I also seen the other bloke Adam I think his name is, kick or kick him in the head or do something to that nature." (Q and A 22) Mr Fanning was standing very close when he saw this. 39Mr Fanning did not see the deceased get hit. What he saw were his legs give way, like he was dizzy. His legs buckled and he crumpled down towards the ground and hit his head on the railing and then hit his head again pretty hard on the concrete (Q and A 47 - 48, 52 - 59). After he fell to the ground, Carly was beside him and the applicant was over the top of him and "I'm sure he kicked him but I'm not a 100 percent sure, but I'm pretty, you know, he was standing right over the top of him." (Q and A 62). When the applicant was standing over the deceased, Mr Fanning heard people say "Don't kick him", "Don't stomp on him" (Q and A 63). As far as he knew there was one kick and that was what he remembered (Q and A 64 - 65). 40Mr Fanning ran over and tried to intervene. He placed his foot over his head "and I got in between like pretty much in between them. But I sort of tried to protect his head a bit, just in case he was kicking his head because I wasn't quite sure if he did kick his head or not but I remember pulling him away. I also remember a couple of other people doing the same thing. Like there was a couple of other people on the other side of me, on the right hand side of me as well, and 'cos I remember pushing him away and then somebody else stopping him and saying "Go the coppers have been called" (Q and A 483 - 484). "Q489 Like could you demonstrate how that ...? A. I didn't see like a, like a kick, like that or like a stomp I just, it was a sort of like, I just seen like the back of his leg like lift up, do you know what I mean, like I didn't see like a full boot, it was more probably more a, more of a stomp sort of thing." Mr Fanning saw his back leg lift up but he did not see his leg connect with the deceased's head (Q490-493). Mr Wayne Farmer 41Mr Farmer was not able to give evidence. His statement of 22 February 2011 was read to the jury. Mr Farmer was having a beer at Kinselas Hotel when Daniel and Carly walked in and said hello. Mr Farmer had met the deceased for the first time the previous evening. He saw the deceased walk out of the Courthouse Hotel with the applicant and Jayson. His evidence was: "I saw the three of them walking in the middle of Taylor Square towards Kinselas. I looked away after they left the Courthouse Hotel. About two minutes later I looked towards Campbell Street and saw Adam standing next to Scott. I saw Adam swing a punch towards Scott. I saw Jayson put his arm around Adam. It appeared that Scott and Adam spoke words to each other. I couldn't hear what was said. I looked away again for a few minutes. I looked back towards the direction of Campbell Street and saw Daniel run from Kinselas towards Flinders Street. I saw a group of about three people follow him. I couldn't see what was happening but because there were people running, I thought something was happening so I stood up to walk over and have a look." (T.294) "I walked to the left side of the grassed area near Oxford Street. I walked around the grassed area and walked along the footpath that runs parallel with Flinders Street. I walked towards the group of people. When I got to the end of the grassed area about 20 metres away from the group of people, I saw Adam and Scott shaping up to each other as if they were about to fight because they both had their fists closed and raised in front of their shoulders and face area. Adam was facing towards Oxford Street. Scott was facing parallel with Flinders Street. They stood about 2 to 3 metres away from each other. I could see over the top of Scott's right shoulder. I saw Adam and Scott step towards each other at the same time. I saw Scott throw a punch with his right closed fist. I saw his fist connect with Adam's face. Adam fell straight to the ground. He fell backwards to his left. Scott was standing about 4 metres away from Adam at this point. Adam stood up and raised both of his hands again with closed fists. Again, as if he was about to fight Scott. Adam lunged towards Scott. I saw Scott moving backwards away from Adam. I saw Adam look like he threw a punch at Scott with his left fist. I saw his left arm in a swinging motion, consistent with a punch. As he did this, a person moved in front of me. I couldn't see if he actually punched Scott. Straight after I saw this swinging motion, I saw Scott fall backwards. He fell to the ground landing on his left-hand side. His face was looking towards the old Taylor Square Hotel and his feet were pointing towards Oxford Street. Scott was lying on his back against the railing that divides the footpath and Flinders Street. I saw Adam standing very close to Scott as Scott was lying on the ground. Adam lifted one of his legs and bend at his knee. He forced it to the ground in a stomping motion. He did this about three times. I could not see if he was connecting with Scott when he did this. I saw Daniel and another man that I do not know try to stop Adam by holding his arms down, and trying to push him backwards. Adam was facing Flinders Street when this was occurring. Daniel was on Adam's right side trying to hold him back. I could hear Carly yelling, "Someone grab the police, someone grab the police". I saw Adam start to run parallel with Flinders Street towards Albion Street. When Adam appeared to punch Scott and make a stomping motion, I was about 10 metres away and there were some people in front of me, so I didn't get a very good view." (T.295) Mr Farmer took his shirt off to put under the deceased's head and stood with the deceased until the police arrived. 42Mr Farmer gave evidence at the committal hearing on 13 June 2012. The transcript was read out by the Crown (exhibit J: committal transcript and map marked by Mr Farmer). 43In cross-examination at the committal Mr Farmer said that he had about 3 to 6 full strength beers and had not taken any other substances that day. He saw something happening over by the T2 building by Flinders Street and went over to see what it was. As he went towards Flinders Street, he saw the deceased hit the applicant and the applicant went to the ground. The applicant got back up off the ground and he and the deceased shaped up to each other. When they confronted each other, a few more punches were thrown. He was pretty sure it was both of them that went to go at it again, not just one of them (T.305-306). Mr Farmer saw the deceased's head go backwards but there were a couple of people in the way. From where he was standing, he could not say what the cause of him going back was. The deceased ended up on the ground, on his side, next to the barricade. 44Mr Farmer did not see the applicant doing anything to the deceased when he was on the ground. The applicant was not there when the deceased was on the ground. There was a woman kneeling down by the deceased, screaming out for help, and Mr Farmer went over and took off his shirt and put it under the deceased's head. Mr Farmer went back to the hotel. There was talk at the hotel about what had happened. People were telling him about what they had seen or what they had thought happened. 45In the committal, during cross-examination, Mr Farmer gave the following evidence: "Q. Did you see Adam lifting his leg up and bringing it down in a stomping motion near to where Scott was or - is that something you saw or were able to see anything like that? A. No, I all I seen I just seen Adam and Scott closer to the barricade and Scott - Adam probably had more power over Scott at that stage but that was it. Like after - just after Adam come off the ground Scott was more or less over near the barricade, then after Adam's gotten up - they've come at each other pretty much together. Q. And after Scott's gone down have you seen Adam, to use a common expression, put the boot in on Scott when he's on the ground. Is that something that you saw or did you not see? A. I didn't, I didn't see any, any anyone do that sort of stuff like put the boot in at that stage. But I have seen Adam trying to get at Scott and I wouldn't say he was putting the boot in because they were just both up together face to face, you know, because Scott went down just before they'd, before Scott went down." (T.310-311 of committal) 46In re-examination at the committal, the following evidence was given by Mr Farmer: "Q. Sir, can you please have a look at your statement that you've got folded up on the witness box? Can you have a look at paragraph 17? A. Yeah. ... Q. The next sentence reads, 'Adam lifted one of his leg and bend at his knee'? A. Okay. Q. Do you now recall whether that happened? A. Okay, yeah. From where I'm standing -- Q. Did you see that? A. All I seen was when they, like I was saying, when they were sort of together just before Scott went down so, I don't know how clear I am in saying anyway, sorry, that he bent his knee. Q. Do you recall that, did you see that? A. When he's going for him when they were arguing, it just seemed like he was going at him, yeah, he could've been trying to get towards - because there was - there was just not Adam and Scott there, there was another bloke and someone else breaking it up." (T.312 - committal) ... "Q. As you recall it, was Adam facing Scott and was Scott facing Adam? A. Yeah, yeah. Q. The third sentence in that paragraph, 'he forced it to the ground in a stomping motion', do you see those words? A. (No verbal reply). Q. Do you agree that the 'he' refers to Adam? A. You know, when I said this, I had a detective with me at the time putting it like in the motion how he was - I was saying and he was saying as it was happening and he was sort of describing the movements and I was showing him and I was saying how Adam was trying to move forward. Q. It says 'he forced him to the ground in a stomping motion'? A. Okay Q. I suggest that the 'he' is 'Adam' and 'forced it to the ground' is the leg that's referred to? A. Mmm, mmm." (T.313 - committal) "Q. But in the statement it indicates dealing perhaps with a different issue, lifted one leg and bent of his knee, do you recall seeing that? A. He lift the leg, yeah. Q. Are you saying you do recall seeing that? A. Yeah yeah, I had seen him." (T.314 - committal) ... Q. He forced the leg to the ground in a stomping motion, do you recall seeing that? A. No, not in that - in - the way it's being said, no. I seen him sort of progressing forward at him." (T.314 - committal) ... "Q. From your memory, the best you can do as at today, are you saw someone on the ground, is that right? A. Yep. Q. Are you saying you don't know who it was on the ground? A. It was Scott. Q. The stomping motion, did you see Adam make a stomping motion? A. Whether it was stomping or moving forward, I can't say. Q. Did you see that motion, whatever that moving forward or stomping was, did you see that about three times? A. Yeah, I - yeah, yes, at least two, two times." (T.315 - committal) 47There were some witnesses on a bus which was passing next to where the fight took place. They gave evidence at the trial. The presence of the bus was confirmed by the CCTV footage. Rebecca Cobb-Clark 48Ms Cobb-Clark made a statement to the police on 2 March 2011. She was travelling with a number of university friends to a birthday party in Circular Quay. She sat in the back seat of the bus on the side closest to the gutter on Flinders Street. The bus stopped at the traffic lights on Flinders Street and she looked out the back window of the bus and saw guys start going at each other. She saw one guy throw a punch at the other guy and they started fighting and then three other men came over and started trying to break up the fight (T.181-182). She saw the shorter guy throw a punch at the taller guy and then they both started punching each other. The taller man punched the other man in response, but she could not say for sure if it connected. 49In cross-examination she said that the shorter man threw the first punch and the other man ducked, so at first she thought they were mucking around. She said that after the three men ran over and tried to break up the fight, the two men started fighting again. She said that both the men were throwing punches at each other and that they were both aiming at each other's heads. The fight started off in front of the building and then went down the side of the building near the bus. Claire-Elise Green 50Ms Green was sitting on the back seat of the bus near the kerb side and Mr Cobb-Clark was to her right. She saw two men sort of standing around with their arms up. One man was significantly more muscular than the other man, who looked lean and scrawny in comparison. She was not sure if they were fighting for real for just play fighting. When she first saw the men, they were standing facing each other on the pavement out in front of the main doors. She thought she saw the smaller man land a blow on the larger man's face, which caused the larger man's sunglasses to fall off. At some point, another man came in between them and was holding his palms facing outwards to try and separate them. She could not hear what the man was saying to them. The man moved away from the centre and the fight continued. The men continued circling around each and then the bus moved. 51In cross-examination Ms Green agreed that in her statement she had referred to the two men as "man 1" and "man 2". She agreed that she described "man 1" as follows: "One of the men was wearing a grey hat, kind of like a gold hat or beret. The man was wearing sunglasses on his eyes, I think he had a triangle goatee. He was in his thirties, white skin, I think he was wearing a white shirt with a V-neck. I can't remember what he was wearing on his legs. I think he or the other guy was wearing thongs. The man was pretty muscly, his arms were bulging, he looked pretty strong. I will call this man "man 1"." (T.190) 52Ms Green said that "man 1" was the man she had earlier described as more muscular. The other man was not as muscular as the man with the beret. She called the man that was not as muscular "man 2". She was watching the man with the beret more closely because he was the one who was facing her. Ms Green could not say he threw the first blow because she did not see the first blow. She remembered "man 2" punching the man with the beret and the sunglasses in the face. Ms Green agreed that when the bus drove away, they were still dancing around facing each other. James McAtamney 53Mr McAtamney was sitting on the second backseat of the bus on the kerb side. He saw two men walking from Oxford Street into Taylor Square towards the railing near them. One of the men was more solid than the other. They stopped between the building and the grassed area and went into a fighting stance and exchanged some punches. He saw one punch thrown by the more solid man connect with the other man's head. Some other men came and appeared to be trying to break up the fight. He saw the more solid man take his shoes off and throw them onto the ground. The lights went green and the bus drove off (T.194 - 195). 54In cross-examination Mr McAtamney said that when he first saw the men they were walking along looking at each other. They seemed to be arguing and Mr McAtamney thought something was about to happen. They stopped near the railing on Flinders Street and he saw them facing each other with their fists up in a fighting stance. The bus was stopped at the lights around a minute. During some of that time, a series of punches was exchanged. As the bus drove off, both men were still in a fighting stance facing each other. Mr McAtamney saw a number of punches which appeared to connect. There was one at the very start from the larger man to the other person's head which he definitely saw connect. That occurred during the initial exchange of punches (T.196 - 197). Ms Vera Newman 55Ms Newman was sitting in the back of the bus with her friends when she saw two men standing outside the T2 building. "Man 1" was wearing a brown coloured hat or beret and "man 2" was wearing a black shirt. "Man 2" was walking away and had his back to "man 1". "Man 2" was a bit taller than "man 1". She could remember that punches were being thrown, one man got hit in the facial region and "man 1" lost his beret. After that a few men intervened and pulled them apart. One of the men started walking south on Oxford Street and she did not see any more. In cross-examination, she agreed that the first thing she observed was that both men were walking in the same direction, but a few metres apart. The taller man or "man 2" turned around. The two men yelled at each other and then the fight happened (T.280 - 281). Medical evidence 56Dr Stephen Wills, forensic pathologist, performed the autopsy on the deceased. It was the opinion of Dr Wills that the direct cause of death was an acute subarachnoid haemorrhage with the antecedent cause being a ruptured vertebral artery aneurysm. From the statements and the information with which he was provided, Dr Wills was of the opinion that this was one of a small number of cases where the rupture was known to be "virtually coincidental" with an episode of trauma, which appeared to have been a punch. A blow to the face would have been sufficient to cause the aneurysm to rupture. What Dr Wills was unable to determine was to what extent the rupture was due to blunt trauma and to what extent the rupture was due to changes in blood pressure which occurred during the fight (T.259 - 260). 57Dr Wills said the injuries to the deceased, consistent with blunt trauma, included: (1) Faint superficial and more extensive deeper bruising around the right angle of the jaw. (2) Bruising around the left eye. (3) Bruising to the left temporal scalp. (4) Bruising and abrasions to both upper limbs and hands. Dr Wills was of the opinion that the injuries to the deceased were inconsistent with six full stomps on the deceased's head by a man wearing thongs or bare feet. He could not say there was no stomping, but he did not think it was in keeping with a sustained assault with forceful kicks and stomps (T.264). 58The detail of that evidence was: "A. Again, we have got several sites of blunt trauma to the head, again, there is nothing specific that we saw to say well that definitely is a stomp. It's possible that some of the injuries could have been caused by a kick or stomp, but the overall pattern of injuries, generally when we do post-mortems on people who have had stomps, as many as six, I would expect the injuries to be more extensive than we found here. There was bruising, but no underlying fracture or anything, so I don't think they were in keeping with 6 full force stomps. There could have been some, but in terms of that's what I was being asked, I don't think the injuries really point to that. HER HONOUR: Q. What about three? A. The fewer there are probably the more likely some of it is caused, obviously you get kicked in the same place, it would only cause one bruise. It is very difficult to put a number on it, in that he's got a number of areas of blunt contact in an assault that's involved both punches, potentially a fall on the railing, potential contact with a fall on the ground, and a number of potential stomps afterwards, it's very hard, it's hard to put a number on it. I wouldn't exclude there was some of that in it, but in terms of large force kicks or stomps, I don't think the evidence points to that. CROWN PRSOECUTOR Q. Was your job made more difficult by the information that it was possible that the accused man was bare foot at the time? A. Again, you are probably less likely to get associated abrasions or possibly patterns that you sometimes see with footwear. But even so I think a kick from even a bare foot person, particularly a stomp where the force goes through the sole of the foot, are typically quite high force injuries, and so I can't say there wasn't any stomping, but as I say, I didn't think it was in keeping with a sustained assault with forceful kicks and stomps." (T.264.15 - .46) 59In cross-examination Dr Wills agreed that all the punches to the deceased could have contributed to the haemorrhage. He thought it was the trauma that immediately preceded the deceased losing consciousness that was the most important in drawing conclusions. Dr Wills agreed that anything that happened after the deceased collapsed was unlikely to be the cause of the rupture because it almost certainly ruptured before that point. Dr Wills agreed that he did not see any injuries to the deceased, post mortem, to indicate to him the deceased had been stomped on. The specific evidence on this issue was: "Q. Certainly the gentleman didn't have any fractures to his skull or any of his facial area? A. No. Q. None of his teeth or anything was damaged? A. No. Q. You didn't see any on the right side of his head, you didn't see any injuries consistent with stomping on the right side of his head, did you, there were no real injuries to the right side of his head, were there? A. No. Q. If someone was raising their leg two feet and stomping down, and they are on concrete, you would expect to see fairly serious injuries, if they were full force, wouldn't you? HER HONOUR: You mean to somebody's head? STEEL: Q. Yes, on somebody's head? A. It's very difficult to connect injuries with absolutes, how high the foot was and things like that. As I say, there was nothing I found that would say yes, definitely that was the full force stomp. When somebody is on the ground sometimes you can see a stomping attack where what is bruising or abrasions from where the stomp happened, and there's also injuries to the other side where the head hit the ground, also bruising and lacerations, and I didn't really see anything like that. Bruising is fairly non-specific, and what it means is you have got a site of blunt trauma. As I say, I didn't see anything that post mortem if I had no information before to say, actually I think this chap was being stomped upon. Q. Just in terms of stomps to the body area, if they are not particularly hard they may not leave any bruising, is that right? A. It's possible. He did have some bruising to his body area, one on the back of his right arm, and one at the back of his shoulders, clearly the shoulder one could potentially have come from a fall to the ground, or if I he's looked away, and the one on the back arm I guess potentially could be from punching himself. " (T.271.22 - 272.10) 60At trial there was evidence from two psychiatrists and from Professor Christie as to the effect on the applicant of his alcohol consumption. Their evidence does not relate to any issue which was raised in the appeal. 61The applicant gave evidence, which was largely consistent with that of Mr Bell, as to what had occurred before he left the Courthouse Hotel. He said that as he and Jayson Bell walked past Kinselas, the deceased approached and said "I don't know what your problem is" or something along those lines and then the deceased walked away. The applicant did not respond but said to Jayson "I don't like this bloke, keep him away from me". The applicant heard the deceased say something off in the distance but he was not sure what it was. The applicant said he felt intimidated and wanted to be left alone. He approached the deceased and said "Leave me the fuck alone". They started arguing and things escalated from there. The deceased raised his fists as though he was ready to fight. The applicant raised his fists in response and they just started to fight. He was not sure who punched first. 62The applicant said that when he raised his fists to defend himself, he was feeling "anxious, scared". The first contact between them occurred outside Kinselas, just on the Flinders Street side of the trees. The applicant was knocked to the ground and as he got back up, the deceased was standing over him: "Q. And was he facing you? A. Yes. Q. How far away from you was he? A. One or two metres. Q. And where were his hands? A. In front of me like during the fight. Q. And what did you do? A. I got back up and started fighting as well. Q. Why did you start fighting again? A. Because I thought he was going to hurt me. I was defending myself." (T.337) 63The applicant said that when he regained his feet, the punching started again. In the second part of the fight, they were moving around and jostling. The fight moved slightly around to the side of T2. They were both throwing punches at each other. He said that he punched the deceased in the face and the deceased fell backwards towards the ground, ending up on the railing in Flinders Street. The applicant thought the deceased hit his head on the fence as he fell. "Q. Were you aware of other people around at that time? A. Not really, no. Q. When he was on the ground did you do anything? A. Yes, I stomped on his upper body. Q. And why did you do that? A. I just wanted him to stay down. He wanted to get up and continue bashing me." (T.338) 64The applicant said that he only stomped once and that was to the deceased's body, not his head. The applicant ran away because he was "freaked out". At no stage did he say "I will kill you" to the deceased, nor did he hit from behind. The applicant denied intending to kill or inflict really serious harm to the deceased and he knew nothing of the aneurysm and thus not of the threat posed by any blow to the deceased's head or jaw. The applicant did not see the deceased with his hands out as though it should stop. He said "No, never. His fists were always closed". (T.340) 65On the following day, he became aware of the seriousness of the events and arranged to surrender to the police. 66In cross-examination, the applicant said that he knew the deceased as Jayson's boyfriend, with whom he had a nodding acquaintance. He said he was surprised when the deceased approached him and told him that he did not know what his problem was. The applicant denied that after they left the hotel, the deceased had not approached him at all but stood at some distance away towards the direction of his house. The applicant was not sure what brought on the argument. The applicant agreed that the deceased did not walk from 4 or 5 metres away with his fists up. It was only after they had words that the deceased put his fists up and they started to fight. 67The applicant specifically denied that he had picked a fight and that the deceased had not asked him what his problem was and that he hit the deceased from behind the first time. The evidence was: "Q. Part of that is right, he certainly knocked you to the ground? A. He did knock me to the ground. Q. Somewhere near the trees out the front of Kinselas? A. Yes. Q. Scott then started to walk off towards Flinders Street to where he lived, isn't that what happened? A. No. Q. What happened next? A. As I got up he was one or two metres off in the distance and he was still ready to fight. Q. Oh I see, so he was between three feet and six feet away from you, still willing to fight? A. One to two metres, yes. Q. He wasn't standing over you, was he? A. He was still standing one or two metres there, like that. I am on the ground looking up and all I see is Scott." (T.346) 68The applicant denied losing his temper, wanting to teach the deceased a lesson or wanting to take revenge on him. The applicant agreed that he was knocked to the ground in the first encounter, but not that he had come off second best. The applicant denied that the deceased was walking away towards the direction of his flat when he approached the deceased from behind and hit him on the side of the head. The applicant said that there was never any occasion when the deceased had his hands down by his sides (T.350). 69The applicant said that he was not concerned when the deceased hit his head on the iron railing in Flinders Street, he was concerned about his own safety. He was not sure if the deceased moved after he hit the ground "No I don't think so". He only stomped on him so he would not get back up. The applicant "wasn't sure" how stomping on the left hand side of the deceased's chest was going to stop him getting up. "Maybe the pressure, he might not be able to get up from the pressure". The applicant denied that it was his intention to inflict further injury to stop the deceased from getting up. It was just enough force to let him know to stay down. His intention by stomping on him was that that would be enough to keep him down. 70The applicant agreed that when the deceased was on the ground he was not aware of other people around him. It was put to the applicant that the evidence from witnesses was that people were standing around him screaming, shouting for the police, trying to remove him and pull him off. The applicant agreed that he had heard that evidence but did not agree that the reaction of the crowd was because he was stomping more than once. The applicant disagreed that there were people standing around him screaming or that people were pulling at him trying to remove him from the deceased. He disagreed that he ran off because he heard people shouting for the police. He said that he just panicked and ran away. He did not run away because he knew that he had done something very wrong, "No. I just freaked out". 71In re-examination the applicant agreed that he became aware that the deceased had hit his head on the railing but: "Q. Were you ever aware that he was unconscious? A. No. Q. And were you ever aware that he was seriously injured when he was on the ground? A. No. Q. Did you think he still had the capacity to get up, did you? A. Yes." (T.358 - 359) 72Not surprisingly, given the location of the events leading up to the deceased's death, there was CCTV footage available which showed the applicant and the deceased at various times, both before and during their confrontation. It was collected and collated by one of the investigating police officers so as to show events as they occurred chronologically. There is nothing in that CCTV footage which supports the evidence of Mr Whiting. In fact, given the detail and precision of Mr Whiting's evidence, it is somewhat surprising that he is not depicted in any of the CCTV footage. At one point in time the CCTV footage showed the deceased and the applicant apparently shaping up, facing each other and perhaps exchanging punches. It showed Jayson Bell walking with the applicant. It also showed the deceased before the confrontation walking in the vicinity of the two hotels. Mr and Mrs Eyers are shown, as is Mr Farmer and Ms Austin. A man identified as "Lee" in the evidence of Mr Fanning is also shown. What seems to be clear from the CCTV footage is that the confrontation did not occur immediately after the applicant and the deceased left the Courthouse Hotel but some minutes later. Otherwise that CCTV footage does not take the evidence further. Consideration 73The task of this Court was restated by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]: "The task of the Court of Criminal Appeal 11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "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". 12 This test has been restated to reflect the terms of s6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "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." ... 14 In determining an appeal pursuant to s6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "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 s6(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'." 74Further clarification was provided by the plurality in SKA at [20]: "20 The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. ... 21 To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. ... " 75More recently, Simpson J (with whom Davies and Adamson JJ agreed) said in Griffiths v R [2014] NSWCCA 60 said at [2]: "2 The task of this Court where such a ground is raised is well established and well known: M v The Queen [1994] HCA 63; 181 CLR 487; MFA v the Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400. 3 The Court must make its own independent assessment of the sufficiency and quality of the evidence. The question, ultimately, is whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand: M at 492; or whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. 4 In making that assessment, the court is obliged to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses." 76It is accepted that the evidence of Mr Whiting was sufficient to establish the necessary intent for murder. I have concluded, however, that his evidence is inherently so unreliable that a jury could not have been satisfied beyond reasonable doubt that the applicant had the necessary intent to establish that he was guilty of murder. I am also satisfied that the evidence of the other witnesses taken with that of Mr Whiting was insufficient to establish that intent beyond reasonable doubt. The necessary intent which the Crown sought to infer from the evidence was not an intent to kill, but rather an intent to inflict grievous bodily harm. 77There was no evidence that the applicant ever admitted to having the necessary intent after the event. In his evidence he denied having any such intention. Accordingly, the Crown could only establish the applicant's intention by the evidence of what he did and said at the time of the confrontation. As already indicated, the crucial Crown witness on that issue was Mr Whiting. 78The first part of Mr Whiting's evidence from which the Crown sought to infer intent was that on two occasions the applicant attacked the deceased from behind and punched him to the side of the head. That evidence was inconsistent with the evidence given by Mr Whiting in the committal proceedings to the effect that the two men were facing each other when the first punch was thrown. It was inconsistent with his police statement in which he said that the applicant was in front of the deceased when the second set of punches was thrown. His explanation for these discrepancies was not persuasive. 79The only witness to provide some support for this part of Mr Whiting's evidence was Mr Eyers. His evidence was consistent with that part of Mr Whiting's evidence to the effect that the applicant struck the deceased from behind on at least one occasion. There are a number of difficulties with the evidence of Mr Eyers. In his statement to the police, there is no mention of a punch from behind and under cross-examination he agreed that he might have made an assumption to that effect. His evidence of a punch from behind is not supported by that of any other witness, in particular those persons watching from the bus. The evidence is significantly qualified in that his recollection was "a bit hazy". His initial observation that the deceased and Ms Austin were arm in arm when he first saw them is clearly wrong. His observation of the deceased having received one punch from behind and immediately collapsing is also not supported by the evidence of any witness except Mr Whiting. A pervading problem in his evidence is the concession that: "Since then I have mulled over it in my mind a thousand times and every time you do it changes ..." 80The evidence of Mr Bell was that initially the applicant and the deceased faced up to each other, began fighting, stopped for a brief period, faced each other and began fighting again. Although Mr O'Keefe had little recollection at the time of trial, in his statement of 22 March 2011 he said that initially both men had "shaped up to each other" and began to fight. The evidence of Mr Farmer in his statement and in the committal proceedings was to the effect that the two men shaped up to each other before they commenced fighting for the second time. Finally, the evidence of the four persons on the bus is to the effect that they observed both men shaping up to each other and is therefore quite inconsistent with this evidence of Mr Whiting. The CCTV footage does not support this part of his evidence. 81It is also not without significance that in her remarks on sentence (par [15]) the trial judge said in relation to this evidence of Mr Whiting: "15 ... However it is the events immediately preceding the inflicting of the fatal blow that are likely to be of greater importance in the sentencing process. In this regard, I do not accept the evidence of Mr Whiting that the offender came up from behind Mr Miller and struck him on the head. It is inconsistent with the majority of the evidence, which had the two men trading punches until at least very shortly before the fatal blow was struck." 82The second part of Mr Whiting's evidence from which the Crown sought to infer intent was that on two occasions during the altercation, the applicant said to the deceased "I'll kill you". Mr Whiting's evidence at trial was that the applicant said those words at the beginning of the fight and after he had got to his feet, having been knocked to the ground by the deceased. This evidence was inconsistent with his police statement in which he said that the applicant had used those words only once, before he was knocked to the ground. It was inconsistent with the evidence which he gave at the committal when he said that the applicant used those words once, after he was knocked to the ground. 83A surprising feature of this evidence is that not one of the other eye-witnesses gave evidence of having heard the applicant use those words. Moreover, the trial judge in her remarks on sentence (par [17]) said: "17 The jury's verdict means that the offender must have intended either to kill Mr Miller or to really seriously injure him. I do not consider that he intended to kill him. In this respect, I do not accept Mr Whiting's evidence that the offender said "I'm going to kill you" during the course of this confrontation. No other witnesses gave evidence to similar effect. ..." Given that a death resulted from the incident, if such words were used by the applicant, it verges on the incredible that no other witness heard them. 84The third and perhaps most important part of Mr Whiting's evidence from which the Crown sought to infer intent was that after the deceased had fallen to the ground and was apparently unconscious, the applicant raised his foot and stomped down from a height of approximately two feet onto the deceased's head six times - "He just stomped and stomped and stomped and stomped" (T.57.8). It was Mr Whiting's evidence that the applicant was wearing shoes at the time but he was not able to say what type. 85Mr Whiting's assertion that the applicant was wearing shoes has been shown to be incorrect. Other witnesses said that the applicant was wearing thongs. Decisively, however, the CCTV footage confirmed that the applicant was wearing thongs when the confrontation took place. 86There was support from some eye-witnesses for the proposition that the applicant's foot or feet came into contact with the deceased's body. Mr Eyers said that he observed the applicant jump once onto the upper part of the deceased's body, but that it was possible that one of his legs remained on the ground. Reference has already been made to qualifications associated with the evidence of Mr Eyers. 87Ms Austin said that the applicant kicked the deceased as he was falling. She thought in the head, but she was not sure. She thought that she saw only one kick. The difficulty with the evidence of Ms Austin is that she was heavily intoxicated at the time. 88Mr Doughty said that the applicant kicked the deceased and then jumped on his head twice. It is difficult to evaluate the evidence of Mr Doughty. He had drunk a considerable amount of alcohol and in the committal proceedings said that when he was being interviewed by the police, he was still feeling the effects of the alcohol and some illegal substances which he had taken on that day. At trial he said that he could remember that a fight broke out but could not remember anything else. He was then cross-examined by the Crown, pursuant to s38 of the Evidence Act 1995 and taken to various parts of his interview with the police on 19 February 2011. 89At trial he initially agreed with what he said in his police statement, i.e., that the applicant had kicked the deceased and then jumped on his head twice and that he had pulled the applicant back and pushed him away. Under cross-examination he said that he had not actually seen these things himself but he had been told about those matters by others. In response to a question from the trial judge, he said that he did pull the applicant away from the deceased and that this was not something which he had been told about by others. His evidence was further complicated because at the committal he said that he could remember the applicant kicking the deceased, but could not recall the applicant jumping on him. 90Mr Fanning did not give evidence but the transcript and the DVD of his record of interview was placed before the jury. He was pretty sure that the applicant had kicked the deceased but he could only remember one kick and it was to the top half of his body. He was not sure if the kick connected with the deceased's head or not. Mr Farmer did not give evidence at trial but his statement was placed before the jury. He did not actually see the applicant stomp on the deceased, but did see him raise his leg about three times. His evidence at the committal proceedings significantly qualified his statement. He denied that he saw the applicant "putting the boot in" and that what he saw was the applicant moving towards the deceased, rather than stomping on him: "Q. He forced the leg to the ground in a stomping motion do you recall seeing that? A. No, not in that - in - the way it's being said, no. I seen him sort of progressing forward at him." (T.314, committal) 91The applicant gave evidence that he had stomped on the deceased once but that had been to the upper part of his body not his head. He said he did so to keep the deceased from getting up again. The applicant did not think that the deceased was unconscious at that time. 92The evidence of Dr Wills was that the injuries to the deceased, as found by him, were not consistent with six full force stomps. He did not think there was a sustained assault with forceful kicks and stomps. In cross-examination he said that there was nothing he found which was consistent with a full force stomp. The effect of his evidence was that there were no injuries suggesting forceful kicks or stomps. 93The preponderance of the evidence was that there was no more than one connection between the applicant's foot and the deceased and in that regard there was an issue as to whether that connection was with the deceased's head, or his upper torso. It is clear from the CCTV footage that if there were some connection it was either with his bare foot or a rubber thong. This is also consistent with the medical evidence. None of that evidence supports the dramatic and emotive evidence of Mr Whiting. 94The Crown submitted that the jury had the benefit of seeing and hearing Mr Whiting and the other witnesses and that they were in the best position to determine the weight to be given to that evidence, in particular, the evidence to the effect that the applicant had stomped six times on the head of the deceased or had stomped more than once on his head. 95While it is undoubtedly true that the jury was in a better position than this Court to assess the witnesses, the assessment of the trial judge on this issue is of assistance. In her remarks on sentence at [13] - [14] her Honour said: "13 Mr Whiting's evidence potentially provided very powerful support for the Crown case. However there were a number of respects in which his evidence was distinctly less than satisfactory. He had previously given accounts which were inconsistent with this version, sometimes on highly significant matters. He had, for example, said in his police statement, that the final punches were inflicted when the offender was in front of Mr Miller, rather than coming from behind, as was his evidence at the trial. Moreover, he consistently denied that the two men were trading punches immediately before the fatal blow was inflicted, saying that the only blow struck by Mr. Miller was the punch which sent the offender to the ground. In this respect, Mr. Miller's account was at odds with the great majority of other eye-witnesses, many of whom knew neither of the protagonists, and can therefore be assumed to have been entirely impartial in their descriptions of the events. These witnesses consistently described the two men as swapping punches not far from the place where the final blow was inflicted. Indeed this is also shown on a CCTV film which was tendered by the Crown. Finally, Mr Whiting's account of the offender stomping on Mr Miller's head six times was clearly inconsistent with the injuries which the post-mortem examination showed that Mr Miller had sustained during the course of this confrontation. 14 Mr Whiting had been a close friend of Mr Miller's, and in the circumstances I can only assume that he was colouring his evidence in order to paint his friend in the most favourable light, and the offender as the sole and unprovoked aggressor." 96Even accepting that the applicant stomped or kicked the deceased on one occasion on the head, I am not satisfied that this is sufficient to establish beyond reasonable doubt that the applicant had an intention to inflict grievous bodily harm, particularly when such a kick or stomp was made with a bare foot or thong. I have this doubt notwithstanding that there was other evidence, not dependent upon that of Mr Whiting, which could conceivably support that part of the Crown case, i.e. that the applicant had to be pulled away or restrained. That latter evidence is equally consistent with those persons being aware that the deceased was unconscious which the applicant was not. 97As appears to have been appreciated by the Crown at trial (as set out in the final address to the jury) the inference of the necessary intent for murder depended mainly upon the jury accepting that the applicant had stomped on the head of the deceased in the way generally described by Mr Whiting. The detail of that evidence was inconsistent with the medical evidence and almost certainly wrong, i.e. that six full force stomps to the head occurred. Once the detail of that evidence is rejected, one has to look at the other evidence, the preponderance of which suggested a single kick or stomp which may or may not have been to the head. 98On that state of the evidence, I am not persuaded beyond a reasonable doubt that the applicant had the necessary intent to kill or inflict grievous bodily harm on the deceased. In accordance with the guidance provided by the High Court in SKA v The Queen and M v The Queen [1994] HCA 63; 181 CLR 487 that is a doubt which the jury should also have had. 99It follows that the applicant's ground of appeal has been made out and that the verdict of the jury that the applicant was guilty of murder is unreasonable and cannot be supported by the evidence. 100That does not end the matter. There remains the question of what order should be made by this Court. While the evidence is not sufficient to establish beyond reasonable doubt that the applicant committed the offence of murder, there is sufficient evidence to justify a conviction for manslaughter. Even then the evidence is not without its difficulties so as to enable this Court to be satisfied beyond a reasonable doubt that the applicant was guilty of manslaughter. In those circumstances, the appropriate order is that the conviction be quashed and that there should be a further trial on the charge of manslaughter. 101The orders which I propose are as follows: (i) Leave to appeal is granted. (ii) The appeal is allowed and the applicant's conviction for the offence of murder is quashed. (iii) A verdict of acquittal should be entered in favour of the applicant on the charge of murder. (iv) There should be a new trial on the charge of manslaughter. 102ROTHMAN J: I have had the advantage of reading the draft judgments of Hoeben CJ at CL and of Beech-Jones J. The Chief Judge has summarised the evidence, which I too have read, and with which summary I agree. 103In examining the issues relevant to whether a verdict is unreasonable, the whole of the evidence must be considered; not a piecemeal examination of parts or in parts: R v Rasic [2009] NSWCCA 202 at [29]. While the Crown, on appeal, relies on some other evidence, fundamentally the verdict depends on inferences as to the applicant's state of mind drawn from the applicant's conduct described by Mr Whiting. 104If the applicant's conduct was not substantially to the effect of that described by Mr Whiting, the inference of requisite intent could not be drawn beyond reasonable doubt. In those circumstances, the conduct from which the inference was to be drawn ought to be proved beyond reasonable doubt. 105The difficulty with accepting Mr Whiting's account of the altercation is that it is, at least in part, inconsistent with the medical evidence and is an account which does not accord with the evidence of other eye witnesses. All of these issues are explained in detail in the judgments of Hoeben CJ at CL and Beech-Jones J. 106While it is ordinarily for the jury to determine which of a number of witnesses is to be preferred, where, as here, an appellate court experiences a reasonable doubt, ordinarily that will be a doubt that the jury also ought to have experienced: M v Regina [1994] HCA 63; (1994) 181 CLR 487 at 493, 494-5, per Mason CJ, Deane, Dawson and Toohey JJ. The focus of such an examination is not whether there is evidence from which it was open to convict, but whether the jury ought to have experienced a reasonable doubt, paying due regard to the jury's advantage in seeing and hearing the evidence: R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at [33]. 107I agree with the analyses of the evidence of Hoeben CJ at CL and of Beech-Jones J. It is unnecessary, given my view of the evidence, to comment on whether the "advantage" of the jury can be discounted or qualified by a contrary view of the trial judge. 108Further, it was unnecessary for the jury to "reject" the evidence of Mr Whiting. It was necessary for the jury to find the applicant's state of mind beyond reasonable doubt and in the absence of a rejection of the relevant medical evidence and of the other eye-witnesses that inference could not be drawn to the requisite standard. 109I agree with the orders proposed by Hoeben CJ at CL. 110BEECH-JONES J: I have had the benefit of reading the judgment of Hoeben CJ at CL. I have reviewed the record of the trial the relevant parts of which are comprehensively summarised in Hoeben CJ at CL's judgment. Subject to the following I agree with his Honour's reasons. 111The start (and perhaps end) point for the Crown case in relation to whether the applicant had the requisite intent to be convicted of murder at the time he killed Mr Miller was the evidence of Mr Whiting. A review of Mr Whiting's evidence in chief suggests that he sought to convey that he had a clear and precise recollection of events that was damning of the applicant. His evidence in chief contains nothing to suggest any doubt or uncertainty. Ordinarily any assessment of whether a witness to a relatively quick street brawl would have such a recall would be a matter that a jury would have a distinct advantage in undertaking. The passage from the M v The Queen (1994) 181 CLR 487 at 494, cited in SKA v The Queen [2011] HCA 13; 243 CLR 400 indicates how this Court should treat that advantage in addressing the sole ground of appeal raised in this case (see [73] above). 112However there were a number of difficulties with Mr Whiting's evidence which do not fall to be resolved by considering the advantage enjoyed by a jury in seeing and hearing it be delivered. First it was inconsistent with the medical evidence. As noted by Hoeben CJ at CL (at [57]) Dr Wills' evidence was inconsistent with the applicant having stomped on the deceased's head six times. Further Dr Wills did not find bruising on the back of the Mr Miller's head. In his evidence in chief Mr Whiting said the applicant struck Mr Miller with a closed fist to the back of the head "several times". 113Second, Mr Whiting's evidence was inconsistent with the statement he made to the police on the evening the killing occurred and with his committal evidence (see [19] to [20]). 114Third, on certain crucial matters Mr Whiting's evidence was inconsistent with the bulk of the remaining witnesses. None of the other witnesses recalled any threat to kill being uttered. None of the other witnesses observed any similar form of stomping similar to that testified to by Mr Whiting. It is true, as the Crown submits, that the quick and confronting nature of the confrontation was such as to be likely to produce differing recollections of the various witnesses, especially as they viewed the confrontation from different perspectives and at different times. That said, a number of the witnesses were in close proximity to the entire event and it seems highly likely that the making of such a threat and serial stomping to the face would be recalled by others if they had happened. Otherwise the only evidence supporting Mr Whiting's assertion that the applicant struck the deceased from behind is that of Mr Eyers. I agree with Hoeben CJ at CL's assessment of that aspect of Mr Eyer's evidence (see [79]). 115In my view the combination of these matters is such as to lead to the conclusion that a jury acting reasonably would have had to reject Mr Whiting's evidence to the extent he suggested that the applicant initiated the confrontation by striking Mr Miller from behind, uttered threats to kill or stomped on Mr Miller's face six times. 116I note that Hoeben CJ at CL (at [95]) sets out the trial judge's findings in the sentencing judgment concerning Mr Whiting's evidence. It is doubtful whether any advantage enjoyed by the trial judge in observing the demeanour of a Crown witness can be employed on an appeal of this kind at least in circumstances where it seems likely that the jury took a different view. For my part I agree with the trial judge's finding because of the objective difficulties with Mr Whiting's evidence which I have already summarised. 117There remains for consideration the balance of the points relied on by the Crown to establish intention which are set out by Hoeben CJ at CL (at [16]). 118The first point is the "evidence of other witnesses concerning stomp/kicks". This comprised the somewhat uncertain evidence of Mr Eyers that he saw the applicant "coming down" onto the "upper part" of Mr Miller's body (at [24] to [25]). It also included Ms Austin's evidence that the applicant "kicked" Mr Miller but "only once". She was "not sure" whether the kick made contact with Mr Miller's head. She accepted the kick may well have been to the "upper torso ... or the upper arm area". Mr Fanning's evidence that one kick to the head was administered was significantly qualified in the extract from his cross examination set out by Hoeben CJ at CL (at [40]). Properly analysed Mr Farmer's evidence on this topic travelled no higher than observing the applicant to raise his leg and bend his knee. None of the witnesses observing from the nearby bus testified to seeing a kick or a stomp. The applicant testified that he had stomped on the chest of Mr Miller to make sure he did not get up. 119The most significant piece of evidence on this topic is that of Mr Daniel Doughy which is extracted by Hoeben CJ at CL at [32]. In his interview Mr Doughy stated that the applicant "jumped" on Mr Miller's head three times. However, as noted by Hoeben CJ at CL, his evidence at the committal hearing was different and under cross examination at the trial he stated that he only told the police what others told him (at [34] to [35]). Although there are grounds for scepticism as to the latter assertion, the contention that the accused jumped on Mr Miller's head three times is very difficult if not impossible to reconcile with Dr Will's post mortem observations. 120I am satisfied that it was open to a jury to conclude that the applicant administered at least one kick to Mr Miller while he was on the ground and did so with an aggressive intent. However I do not consider that it was open to a jury to conclude that any more such kicks were administered or that they were administered to Mr Miller's head. Relevantly, I do not consider that it was open to such a jury to treat that act together with the other evidence as demonstrative of the applicant having an intention to inflict death or cause grievous bodily harm upon Mr Miller. 121The sixth point raised by the Crown and noted by Hoeben CJ at CL at [16] as demonstrating the requisite intent on the part of the applicant is that the applicant "initiated the second fight by punching the deceased from behind". I have already addressed the factual basis for this contention. Otherwise the balance of the points raised can be accepted so far as they go. However none of them individually or in combination with each other and the balance of the evidence justify a conclusion that it was open to the jury to conclude that the applicant had the relevant intention necessary to make him guilty of murder as opposed to manslaughter. 122Once Mr Whiting's evidence of threats and six stomps to the deceased is put aside, the evidence concerned a street fight where neither participant intended to either kill or inflict really serious physical injury upon the other. Mr Miller's tragic death arose in circumstances that he had an undiagnosed brain aneurism. Of course the applicant may have been legally responsible for the fight and Mr Miller's death, but that is not the issue raised by this appeal. Instead the appeal is solely concerned with whether it was open to a jury to be satisfied beyond reasonable doubt that at the time the applicant caused Mr Miller's death he intended to kill him or inflict grievous bodily harm. In my view it was not. 123I agree with the orders proposed by Hoeben CJ at CL.