O'Connell v DPP [2025] ACTCA 20

In making that assessment, the appellate court must be astute to consider the nature of the alleged inconsistencies, discrepancies or inadequacy of the evidence and the implications of those shortcomings for the verdict. Not every inconsistency or discrepancy in an eyewitness account will indicate that the evidence is unreliable proof of the central events.

Other evidence in the trial established that the appellant arrived at Calvary Hospital at 4:51am.

Ms X said that they got outside and the appellant was leaving. Ms Jordan did not want him to leave “so she jumped on the bonnet”. Ms X was telling Ms Jordan to get off the car and Ms Jordan was telling the appellant to come inside because she wanted to talk. The appellant then got out of the car and went down the street towards the cul-de-sac. Ms Jordan “dived in the window [of the car] to find her vape”. The appellant started walking back up the street saying, “is she in my car?”. The appellant dragged Ms Jordan out of the car and she again asked him to come inside and talk. She then got back onto the bonnet. The appellant got back into the car and Ms X got on the side of the car. Ms X said to the appellant “just get the vape and I’ll get her off the car and, like, we can go inside”. However, the appellant started driving so Ms X got off the side of the car and stood in front of it with Ms Jordan still on the bonnet. Ms X was telling Ms Jordan to get off the car.

The appellant started driving slowly towards Ms X. She kept taking a step back, and a step back, and he kept coming towards her. They did that all the way up the street. Then he reversed “all the way back down to Danielle’s place”. Ms X was still at the top of the street. She said the appellant then “put his foot down” and was coming straight towards her, so she jumped out of the way. He turned left and headed off down Alfred Hill Drive. She ran after him but stopped to walk and catch her breath after about a block. Then she heard “a screech and, like, a doof”, so she started sprinting again. She did not see Ms Jordan fall from the car. As she approached the point where the car had stopped, she saw the appellant get out of the car, walk to the back of the car, pick Ms Jordan up and put her in the passenger seat.

Ms X said she looked at Ms Jordan and saw that she was “all, like, fucked up” and that the appellant said, “I’m sorry, mate, I didn’t mean to do it” and “I’m sorry Bub, I’m so sorry, I didn’t mean to do that”. He got in the car and went to explain what happened but Ms X did not care, she just told him, “Take her to the fucking hospital or I’m going to kill you”. He drove off. She picked up a little blue rock from the road that had fallen out of Ms Jordan’s pocket. Then she went back to the house and fell asleep.

In answering further questions, Ms X gave some further detail but her account remained consistent. She said Ms Jordan was sitting cross-legged on the bonnet. She said at the point when the appellant was leaving the second time, Ms Jordan was calm because she did not want him to leave so she calmed herself down. She said the appellant was “still, like, schizo”, “like, really angry”.

The police officer asked Ms X to describe how they moved up the road. The interview continued as follows: Interviewer: So can you describe how that happened? Ms X: Basically, like I was standing, like – after, like, he wouldn’t, like, give me the vape, I walked in front of the car, so he wouldn’t leave. And then he was slowing going forwards, and I was just slowly walking backwards, and he was just slowly going forwards. And then we did that all the way to top of the street. And then he reversed all the way down. And I was just, like, standing there, and I looked at him and I was, like, ‘Fuck.’ And then he just put his foot down and was, like, coming straight for me. So then I jumped out of the way. Interviewer: Okay. And where was Danielle when the car went up? Ms X: On the bonnet. Interviewer: The whole time? Ms X: Yes. Interviewer: Okay. So it’s come back down, and then you said that he’s put his foot down? Ms X: Mm-hmm. Interviewer: How did you know he put his foot down? Ms X: Because he – like, he was, like, at a stop. Interviewer: Yeah. Ms X: And then he just instantly just, like, went so fast up the street, like, coming for me. So I jumped out of the way, yeah. Interviewer: So when he’s gone fast up the street, coming for you, where were you standing exactly? Ms X: Like, in the middle of the road up there. Evidence in the trial

Ms X’s evidence in the trial was pre-recorded in May 2023, when she was 14. In cross-examination, she accepted that, on the morning of these events, she had been smoking cannabis with Ms Jordan and had not had much sleep. She further accepted that she blames the appellant for the death of her friend. She agreed that she spoke to him by telephone when he was still at the hospital (and presumably after she had called police) and said, “have fun being locked up”. However, it was not put to her at any stage that she was lying about having seen Ms Jordan on the bonnet of the car when the appellant was driving it.

Ms X was cross-examined about how far the appellant reversed the car before driving straight at her. The exchange was as follows: Mr White: Now, you have said – you said in the interview, if you remember this that at one stage Michael reversed to the end of the street or towards the end of the street and then I think you – the expression you used was, ‘He put his foot down and drove the car at you’? Ms X: Yes. Mr White: And I think you said in the interview that in fact that was the time when the car continued around corner and that’s when ultimately Danielle fell off the car further down Alfred Hill Drive. Is that correct or not correct? Ms X: Correct. Mr White: So just to be very clear. You say that Michael took the car right back to the end of Coutts Place. Is that correct or not correct? Ms X: Correct. Mr White: Put his foot to the floor – in other words, put the gas on so the car came up at speed towards you. Is that correct or not correct? Ms X: Correct.

As noted in the prosecution’s appeal submissions, the first question in that exchange was misleading. Ms X had not said at any point before then that the appellant reversed to the end of the street. She had said that he reversed from the top of Coutts Place to Danielle’s place, which was roughly halfway down the street.

It was put to Ms X that, before the car went around the corner, it was stopped. She disagreed. It was further put to her that she did not see whether Ms Jordan was on the bonnet of the car when it left Coutts Place. She said she saw Danielle on the bonnet at that time.

Ms X agreed with the cross-examiner that when she spoke to police on the day of the incident and two days later, she was confused about “some of the details that had happened”. The main “detail” about which she was pressed was her confusion as to the particular intersection at which the accident happened. On the afternoon of 15 April 2022, Ms X was asked to take police back to the intersection where Ms Jordan fell. She took Detective Janssen to the corner of Alfred Hill Drive and Levey Place, whereas in fact it was further along Alfred Hill Drive, at the next intersection, that Ms Jordan fell. When Ms X took police to the intersection of Alfred Hill Drive and Levey Place, she became confused as to why there was no blood there. She inferred that the appellant must have washed the blood away. A police officer then went further down the road and found blood at the next intersection.

Ms X also told police she had stopped to catch her breath at Flower Place. In cross-examination, when being pressed as to why she would need to catch her breath so close to where she started, Ms X told the cross-examiner that Flower Place was further from Coutts Place than Levey Place. That turned out to be wrong, as she readily accepted when she was shown a map. The explanation was that she was confusing Flower Place with Crossley Crescent.

That is very much the kind of confusion the jury was well-placed to assess. Parsing and analysing a cross-examination on paper can tend to amplify apparent weaknesses that were assessed and properly dismissed as insignificant by those listening to the evidence as it was given.

The appellant relies on Ms X’s confusion about the streets in support of ground 4(a). I do not accept that it has the significance the appellant contends. It does not derogate from her consistent and repeated evidence that Ms Jordan was on the bonnet of the appellant’s car as he turned out of Coutts Place and drove off down Alfred Hill Drive. Ms X had sprinted along Alfred Hill Drive after her friend, in the dark. She paused to catch her breath but then, after hearing a screech and a sound she took to be the sound of her friend falling from the car, the very outcome she had tried to prevent, she took off again. As she was running towards that intersection in the dark, she was watching the appellant pick up Ms Jordan, who was covered in blood, and put her in the car. She was not counting intersections.

It is hardly surprising that, when Ms X was asked later the same day, in daylight, to take police back to the intersection where Ms Jordan fell, she pulled up short. The distance between the top of Coutts Place and the point on Alfred Hill Drive where Ms Jordan fell was measured by police at 209.9 metres. On the morning of the incident, Ms X was sprinting that distance in the dark as fast as she could go. It is unsurprising that, when she went back with police later that day, in daylight, she experienced the distance differently.

Ms X’s confusion about the intersection where Ms Jordan fell is not something that should engender general scepticism as to the reliability of her evidence. It is not as if there was no fall, or no blood. The identification of the wrong intersection in different circumstances on a surburban Canberra street with several intersections does not cause me to doubt the reliability of Ms X’s account of the appellant’s conduct.

About 10 seconds later there is the sound of a sudden screech and, almost instantaneously, a man (accepted to be the appellant) first shouting “you dickhead!” and then some further, higher-pitched words (possibly “fucking idiot”). A further 10 seconds later, Ms X is seen running across the screen in the direction of the car. No other person is seen crossing the screen separately from the car.

As discussed above, Ms X said that, after the screech, she heard a “doof” sound. It was put to her in cross-examination that she did not hear that sound. It may be accepted that a sound of that description cannot be heard on the audio from the CCTV camera. It does not follow that Ms X was mistaken, or that her evidence that she heard a sound is unreliable. By the time she says she heard that sound she was closer to the point of the fall than to the CCTV camera. Furthermore, it is beyond dispute that Ms Jordan in fact fell. It is not impossible that Ms X heard her fall, or heard some other sound at that point that was not picked up by the CCTV camera equipment.

The appellant submitted that the CCTV footage is entirely inconsistent with Ms X’s evidence. He submitted that the CCTV audio and visual shows the vehicle’s engine being “started while it is parked at the top of Coutts Place, drifting back slightly (as for a manual vehicle) and then turning the corner”. The appellant submitted that there was no time for him to have started the engine, reversed to the bottom of Coutts Place with Ms Jordan on the bonnet, and then driven at speed towards Ms X.

I do not accept that submission. As already noted, the sound of the engine starting follows immediately after the sound of the car lurching forward. It is not the sound of a parked car being started. It was open to the jury to interpret the audio as the sound of the car stalling as it was inched uphill and then immediately being restarted. Furthermore, I do not accept that there was no time for the appellant to have reversed back down Coutts Place before driving back at speed towards Ms X. As noted above, the video footage shows the headlights disappearing from view for five seconds. That is ample time for the car to have reversed some distance back down the road. The roar of the engine described by Ms X can be heard on the audio, as can her calling out “Michael!”. The fact that she called out and the desperate tone in which she did so is consistent with Ms Jordan still being on the bonnet at that time. Ms X can be seen sprinting after the car, exactly as she described. There was no reason for her to chase the car if her friend was no longer on it. She said her friend was on the bonnet the whole time and I see no reason to doubt that account.

It may be accepted that Ms Jordan cannot be seen on the bonnet of the car in the video footage, but nor can she be seen on the back of the car, or running behind it. It is the fact that Ms Jordan ended up some 200m further down the road. She must either have been on the car or running behind it. But the video footage clearly shows Ms X running after the car and no other person can be seen crossing the screen on foot at any time. The only rational explanation is that Ms Jordan was on the car as the appellant sped off down Alfred Hill Drive. The CCTV footage is otherwise equivocal, as she cannot be seen on either the bonnet or the back. For those reasons, I reject the appellant’s contention that the CCTV footage shows that the version of events given by Ms X did not occur.

Later in the interview, the appellant was asked where the incident occurred. He said: Um, well – it started off, like, in the street, and then I got – when I got off, I – I drove up the street and around the corner, and then I stopped to check – make sure I had (indistinct) and that, and that’s when Danielle caught back up to me again and jumped onto the bloody – jumped onto the back of the bloody ute. And then, when I got out to try and stop (indistinct) so I got out, and that’s when she – as I was getting out, she jumped – jumped off and then just tripped. She couldn’t get her foot in properly. Just tripped and fell straight onto the bloody thing.

He later volunteered the following: But, um – yeah. It was just – the other one, she bloody – I bloody drove off, and then – then she caught up to me and I stopped to sort of make sure I had everything with me, and then she jumped back onto the back of the thing. Oh, she’s just so persistent.

The questioner then went back through the events step by step. The appellant said that, when he tried to leave, Ms Jordan jumped onto the bonnet and tore or bent one of the windscreen wipers (other evidence established that one of the wipers was damaged). After a series of questions about the car, the appellant returned to the topic of his attempts to leave and said: But, yeah, they, um – at that point on, um, [Ms X] and that was out the front as well trying to stop me, and they – and that was the other part of it. And they – they grabbed – [Ms X] was at the front of the car grabbing on – on – onto the bull bar and stuff and stopped me so I couldn’t drive. And that was – oh, sorry, Danielle wasn’t there and [Ms X] was at the side of the car.

After more questions about the car, the appellant again returned to the topic of his attempts to leave. He said: So, um, yeah, that was after that. Like, I can’t remember. There was a few – few times that I just (indistinct) like, I went inside at one point, then I come back out and when they jumped on the car again, I walked down the street and left them there and left Danielle there, and come back. Um, yeah, that was the last time that Danielle had – Danielle had actually grabbed on. And then I drove off and then I stopped around the corner. And she’s chasing me, and she jumped onto the back, and then that’s when – and then I got out of the car and then she – and she’s jumping – coming to jump off and that’s how she literally fell down and – and – and – yeah. (indistinct) it wasn’t really nice to see it. And that was the worst thing I’ve ever seen in my life.

He later said that, after walking off and then coming back, he jumped back in his car and went to go. He said Danielle was not on the car when he came back, she was standing on the lawn and asking him to come inside. He then said: And, ah, then I jump back in the car, and when I jumped back in the car, and then she’s tried to jump on it again. Jumped on and that. And then that’s the third time, when I finally got – got out and, you know, I drove around the corner, when she’s – and then I stopped, and then she - she’s chased and caught up to me and jumped on the thing. And that’s exactly how it was.

He later said there had been at least two times when she got on the car to stop him leaving and he got out and walked away. He then described the third or last time he tried to leave, as follows: Interviewer: At least twice? Accused: Yep, and then the third time I – I – I – it was the last time anyway, was when I – literally she – she got – got away, and got around the corner a bit. Interviewer: Mm-hmm. Accused: And then I stopped the car because I thought maybe she had her wallet and everything there. And then she’s caught up and jumped straight on the back of – on my ute to try and stop me. And then I (indistinct) you know, went to get out of the car, and then when – as I was getting out, and then obviously she – she knew I was getting out of the car, so that’s when she went to come off and – and fell – fell off it then, tripped and fell off.

The questioner then confirmed by reference to a map that he meant he left Coutts Place and drove partway down Alfred Hill Drive. He confirmed that he stopped somewhere between Coutts Place and Levey Place and that was where Danielle caught up with him and jumped on the back of the car. He said the car was stopped at the time she jumped on because he had stopped to make sure he had everything. He said he thought he was “out of sight” when he stopped to check that he had everything. He said when he heard her and saw her on the car, he got out and went to get her off and that’s when she fell, as she was getting off the car. He said she hit her head and was unconscious “pretty much straight away”.

The appellant said that Danielle fell off the driver’s side of the car.

The appellant said that the only time he drove the car with Danielle on the bonnet was as he backed out of the driveway at her house. He said he was going very slowly at that point and the car moved about two metres. He said she was not on the car at any point when he drove up Coutts Place. He said she “caught up around the corner, when I stopped”.

In his answers to police, the appellant repeatedly said that he drove around the corner, that he stopped after driving around the corner and that that was when Danielle caught up with him and jumped onto the back of the car.

Police then told him that a witness had said he had driven up Coutts Place with Danielle on the bonnet, that he had reversed down, still with Danielle on the bonnet, and that he had then driven aggressively out of Coutts Place onto Alfred Hill Drive with Danielle still on the bonnet. He denied each of those allegations. He was told that the witness then heard a loud screech and a thump. He said he did not brake heavily at all. However, the screech can be heard on the CCTV audio.

The appellant said that the point where Danielle fell was not far from the middle of the street.

The appellant agreed that he had sent a text to Ms X’s mother saying: Hey mate, just letting you know that Danielle is in hospital. She fell from the top of her back steps. They are doing scans on her now. You can tell [Ms X] as well. Thank you.

The appellant also agreed that he had told the same thing to others. He explained that he did not want to “tell people that she’d been a loony and – and – and running and chasing after me”. Police asked why he would tell Ms X the same story, knowing that she had seen where Danielle actually fell. He said: She didn’t – she didn’t know – oh I don’t know. I just bloody told – told her that to tell – say that.

Importantly, whereas the CCTV footage is not inconsistent with Ms X’s account, it is inconsistent with the appellant’s account. Ms X can clearly be seen running along Alfred Hill Drive after calling out “Michael!”. No other person is seen on foot behind the car. Other evidence

A crime scene investigator examined the Triton. Much of her evidence was equivocal as to the appellant’s guilt. She observed dust disturbance on the bonnet, which is unsurprising as it is common ground that Ms Jordan was on the bonnet at some point. She also found dust disturbance on the tonneau cover on the back of the Triton, which was a soft cover. Ms Jordan’s fingerprints were found on the sports bar on the back. The crime scene officer also found glitter on the tonneau cover which, based on other evidence, probably came from Ms Jordan.

The crime scene investigator said that fingerprints were also found on the bonnet but there was insufficient detail to identify whose they were.

The appellant submitted that this combination of forensic evidence obtained from the back of the Triton (the dust displacement, the fingerprints and the glitter) establishes the existence of a reasonable possibility that Ms Jordan was on the back of the Triton, not the front, when the appellant turned the corner and drove down Alfred Hill Drive and that he did not know she was on the Triton at that point. That is not what the appellant told police but it must still be excluded as a reasonable possibility. He noted that the CCTV footage does not reveal any calling out at that point, which he submitted supports the possibility that he did not know she was there. The appellant submitted that this evidence taken in combination should have caused the jury, acting rationally, to have a reasonable doubt.

However, as noted above, the appellant himself told police in his record of interview that Ms Jordan had jumped “on the back or whatever” when they were still at Coutts Place and before he drove off. Forensic evidence indicating that Ms Jordan was on the back of the Triton at some point does not disprove or cast doubt on Ms X’s account that Ms Jordan was on the bonnet when the appellant drove off.

The evidence of the forensic pathologist, Professor Duflou, did not take the issue any further. If anything, his evidence supported the prosecution case that Ms Jordan fell from the Triton while it was travelling at speed rather than falling after stepping off the car while it was stationary or almost stationary. He described injuries that suggested “further movement after impact” (grazes to the face and other parts of the body) which he did not think were consistent with a fall from a vehicle that was either stationary or moving at only one or two kilometres an hour. He accepted that, if Ms Jordan attempted to step off the side of the vehicle as it was moving at some speed and either slipped or jumped, that could have resulted in the type of head injury observed. However, he considered that it was much less likely that she fell from the vehicle while it was either stationary or moving very slowly. He gave two reasons for that opinion. First, he said the skull fracturing was more severe than would be expected from a fall from a stationary vehicle. Secondly, he said if there had been a fall from a slow-moving or stationary vehicle, if that is what caused the grazes and other injuries to the front of the face, “you wouldn’t get an injury to both the back of the head where the impact is and then the front from presumably rolling”.

The appellant submitted that all of the evidence, with the exception of the evidence given by Ms X, was either consistent with Ms Jordan having leapt onto the back of the vehicle and the appellant stopping when he saw that she was there, or neutral in that respect. If the only point of the submission was to emphasise that the prosecution case rested critically on the evidence of Ms X, I agree. There is no dispute about that. However, it appeared also to be suggested that some of the evidence was more consistent with Ms Jordan being on the back of the vehicle than on the bonnet. If that was the submission, I do not accept it. It is accordingly necessary to address each aspect of the evidence relied on to support the submission.

First, the appellant relied on the fact that the CCTV footage did not show Ms Jordan on the front of the vehicle. However, nor did it show her on the back, or on foot chasing the vehicle. Accordingly, all that can be concluded is that the quality of the footage is too poor to show where she was on the vehicle.

Next, the appellant relied on “the undisputed evidence that the appellant picked Ms Jordan up from the back of the vehicle”. That is equivocal. If she fell from the bonnet while the vehicle was moving, it would have come to a stop in front of her. Separately, the appellant relied on the fact that the medical evidence showed no signs of Ms Jordan having been run over. However, if she fell to the side of the vehicle, as the appellant told police, she would not have been run over. In short, the placement of her body by reference to where the vehicle stopped was equivocal.

Next, the appellant relied on the forensic evidence indicating that Ms Jordan had been on the back of the vehicle. That included her fingerprints on the sports bar, the dust disturbance on the tonneau cover, marks in the dust on the tonneau (possibly caused by a foot in a sock but ruled out to be from a shoe) and the glitter on the tonneau cover. However, none of that evidence fixes a time when Ms Jordan was on the back of the vehicle. As already noted, the appellant told police that, when Ms Jordan was trying to stop him from leaving, she “jumped onto the back or whatever” and “got off again” before he drove “up the road a bit”.

The appellant further submitted that there were no fingerprints located on the bonnet notwithstanding that Ms X demonstrated Ms Jordan “holding onto the lip of the bonnet”. Upon analysis of the forensic evidence, the fingerprint evidence concerning the bonnet is equivocal. Fingerprints were found but were not of sufficient quality to enable comparison with known fingerprints.

The appellant next relied on the fact that, while the appellant’s and Ms X’s voices can be heard on the CCTV audio, Ms Jordan is not heard to call out. He submitted that her silence at that time is “consistent with her stowing away on the vehicle rather than being driven terrified on the bonnet”. That is a submission that is available to be made, but the fact that she did not call out is not inconsistent with her being on the bonnet.

The appellant next relied on the fact that there was evidence that Ms Jordan had consumed methylamphetamine and cannabis, which could cause her to act in an aggressive or unpredictable way and engage in risk-taking behaviour. That evidence is also equivocal as to where she was on the Triton when she fell. Sitting on the bonnet while the appellant was in the driver’s seat with the engine running to stop him from leaving is equally as aggressive, unpredictable and risk-taking as jumping on the back while he was stopped in the street.

The appellant relied on the fact that the photographic evidence demonstrated that it would have been difficult for the appellant to see Ms Jordan if she was on the back or side of the vehicle. That is not a factor that makes it more likely one way or the other that she was on the back or on the bonnet. It is consistent with the accused’s explanation, but the prosecution case was that he deliberately drove knowing she was on the bonnet.

The appellant further relied on his reaction between breaking and stopping. It was submitted that he spoke in a tone of shock and surprise, saying “you fucking idiot” and “why did you do this to me”. Counsel submitted that a tone of surprise or shock is inconsistent with the prosecution case, where it is alleged that he deliberately tried to dislodge her. Again, that is a submission, but it is not a piece of evidence that stands in the way of acceptance of Ms X’s evidence that Ms Jordan was on the bonnet.

The NSW Court of Criminal Appeal dismissed an appeal against conviction. In his appeal to the High Court, one of the applicant’s arguments was that the Court of Criminal Appeal had erred in failing to take the trial judge’s opinion into account. The argument was framed by reference to the power of a trial judge under s 11 of the Criminal Appeal Act 1912 (NSW) to provide a report to the appeal court “giving the judge’s opinion upon the case, or upon any point arising in the case”. The High Court rejected that aspect of the appeal. Crennan J (with whom French CJ, Gummow and Kiefel JJ agreed) stated the principles that apply where such a report is provided at [112]: First, whilst a trial judge's report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge's report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned.

Those principles were applied by the NSW Court of Criminal Appeal in Shamoun v R [2015] NSWCCA 246, a case that considered the weight to be given to the findings of the sentencing judge.

For those reasons, I would reject annexures C, D and E to Mr Deakes’ affidavit, being the submissions and transcript from the proceedings on sentence, as additional evidence in the appeal.

The appellant contends that the last sentence in that part of the prosecutor’s address was in the nature of a “why would she lie?” submission (a topic addressed below). I do not accept that submission. Read in the context of the point the prosecutor was making, the jury would not have focused on that single question (as the appellant has) as an invitation to reverse the onus of proof. A prosecutor is entitled to make submissions as to why a witness should be believed. This was that. The rhetorical point was, would a 13-year-old have the wit to add that kind of detail (that the accused said, “I’m sorry, Bub”) if she was embellishing? It was not an invitation to speculate about motive to lie.

The second remark complained of is in a different category. Unfortunately, shortly after the first remark (about five pages of transcript later), the prosecutor actually asked the rhetorical question, “why would she lie about that?” The question came at the end of a submission about the consistency of Ms X’s evidence, both as between her several statements given on different occasions and with the CCTV footage. The prosecutor noted that, at the time she spoke to police, Ms X did not know about “the forensics” or the CCTV footage. He was making a fair point, which was that the jury could not reason that Ms X had tailored her evidence to suit other evidence in the prosecution case because she was not aware of that evidence when she spoke to police. He was inviting the jury to accept for that reason that she had simply described what she had seen. The prosecutor then said: Ms Jordan on the bonnet: consistent all the way through. And how on earth would a 13-year-old know it makes any difference whether she’s on the front or back? Why would she lie about that?

It is established that a jury should not be invited to speculate as to why a prosecution witness would lie. The vice of doing so has been described as “the risk that, in the search for an explanation for why false allegations might be made against the accused, the onus of proof is transferred from the Crown to the accused”: Doe v R [2008] NSWCCA 203 at [21] (Latham J, with whom Spigelman CJ and Hidden J agreed at [1] and [2]).

The prosecutor realised his mistake as he spoke and (as he later told the trial judge) immediately tried to “walk it back”, saying: Now, the question is not why she would lie but if it is suggested to you somehow that she is mistaken or had some motive to tailor the version, you would be entitled, in my submission, to ask yourself why wouldn’t she just say she was on the back, if that’s what she saw, if that’s where Ms Jordon was.

Shortly after making those further remarks, the prosecutor suggested it might an appropriate time for a break. The trial judge agreed and sent the jury out, after which the appellant’s counsel made immediate complaint, raising two issues. The first concerned the rhetorical “why would she lie?” question. Secondly, counsel complained that the prosecutor was “haranguing” the jury in a manner and tone that crossed the line of appropriate rhetoric for a prosecutor.

Without accepting the complaint about tone, the trial judge suggested the prosecutor “moderate” it. He indicated that he would. As to the rhetorical question, her Honour accepted that such a question has a “clear tendency to reverse the onus”, but expressed the view that it could be remedied, first, by the prosecutor withdrawing it and secondly, by “forceful directions” in the summing up which counsel for the accused would be able to foreshadow in his closing address to the jury.

After the morning tea break and before the jury came back, counsel for the accused raised a further point, which was something the prosecutor had said about Ms X’s consumption of cannabis. The prosecutor had said to the jury that there was no basis for them to conclude that Ms X had anything other than “the same low level of cannabis that Ms Jordan had when her blood was analysed”. As Ms X’s blood had not been analysed, that submission should not have been made. There was simply no evidence as to whether she had smoked more or less than Ms Jordan or was affected to any greater or lesser degree.

Trial counsel submitted that there was “a hint of a reversal of onus” in the prosecutor’s submission. However, that particular complaint is not part of this ground of appeal; it is an aspect of ground 4(b)(ii) discussed below. It is recounted here simply as part of the narrative.

The trial judge (with respect, correctly) did not take up the “reversal of onus” point but responded that the difficulty was in saying there was “no basis” for concluding anything other than that both women were affected to the same degree whereas in fact there was no evidence on the issue either way. Neither counsel had explored that issue with Ms X in her evidence.

When the jury was brought back into court, the trial judge reminded them that counsel’s address is not evidence and that they must disregard any submission not founded in the evidence and disregard any speculation. The trial judge did not refer specifically to the submission concerning the consumption of cannabis at that time. That was an agreed approach. Before bringing the jury back, the trial judge had told counsel that she proposed to direct the jury (again) that what counsel say is not evidence; that they should disregard any submission that is not founded in the evidence and that they should disregard any speculation that is not in the evidence. Her Honour then said, “Unless you want to be heard otherwise, I wouldn’t propose to go further into this example”. Trial defence counsel responded “Okay”.

After the trial judge had given the jury the directions foreshadowed, the prosecutor picked up the judge’s point and repeated that the jury should disregard anything tantamount to speculation. He then outlined exactly what the evidence was on the issue of consumption of cannabis. In accordance with the exchange in the absence of the jury, he did not expressly withdraw the submission that there was no basis for concluding anything other than that Ms X and Ms Jordan were affected to the same degree.

The prosecutor then turned to the “why would she lie?” submission, which he did withdraw, as follows: The other thing I need to correct is something I said to you about [Ms X’s] evidence of Danielle's location on the vehicle. The effect of what I asked you to do was consider what she says, but then to go on and question why she would be untruthful about that. You need to be really, really, really clear. That is a submission that I need to withdraw and it is not – I repeat not – a chain of reasoning that you are entitled to engage in. You can't do it. It follows from a number of things that I have already said to you: (1) the case is not a question of who do you believe; (2) the accused has nothing to prove – even now, even after giving versions, he doesn't have anything to prove; and (3), as I have said to you on a number of occasions, her Honour has said and will again, the prosecution bears the onus even now, even at this late stage, so you can't ask yourself the question why would she have said that if it wasn't true?

In due course (in her summing up), the trial judge proceeded to direct the jury as foreshadowed. Of course, that direction was given in addition to the general direction as to the onus of proof and the particular direction required in this case arising from the circumstance that the prosecution case depended on a single witness. All three directions are set out below.

First, the trial judge gave the following direction (which her Honour had earlier provided to the parties for comment) in relation to the onus of proof: The next direction, onus of proof, follows logically from the first and it is a critically important direction. The prosecution brings the charge and it is the prosecution who bears the onus of proving the charge beyond reasonable doubt. That onus never shifts during the trial. At no stage is there any onus or obligation on the accused to prove he is innocent. It is the prosecutor who has the task of proving guilt. It is not a question of who you believe. Simply stated, it is not for the accused to establish his innocence but the prosecutor to establish the accused's guilt beyond reasonable doubt. This is very important and so I will emphasise it again. At no point in your reasoning should you be asking why the accused has not proved something. If there is an absence of evidence, this must be taken into account in considering whether the prosecution has proved its case beyond reasonable doubt. There is never any onus on the accused either in respect of any individual piece of evidence or as to the case as whole. You have heard submissions about reasons for accepting the prosecution case and reasons why you may not accept the prosecution's case, but the correct legal question, which is the ultimate question for your determination, is whether the prosecutor has proved the guilt of the accused beyond reasonable doubt. If the answer to that question is yes, the appropriate verdict is guilty. If the answer is no, the verdict must be not guilty.

The trial judge then gave a direction concerning the fact that the prosecution case relied on acceptance of the evidence of Ms X: [Ms X] is a critical witness in the prosecution case … She is the only witness who sees Ms Jordan on the bonnet of the car. Now, as I have said, the prosecution has alleged, and only alleged, that Ms Jordan was on the bonnet of the vehicle when she fell onto the roadway. If you are not satisfied of that fact beyond reasonable doubt, you must acquit the accused of both the offence of murder and the statutory offence of manslaughter. So, accordingly, unless you are satisfied beyond reasonable doubt that [Ms X] is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. For this reason, before you can convict the accused of either count – [of] either murder or the statutory alternative – you should examine the evidence of [Ms X] very carefully to satisfy yourself that you can safely act on that evidence to the high standard required in a criminal trial.

Dealing with the “why would she lie?” submission, the trial judge directed the jury as follows: Now, in his closing address, the prosecutor rhetorically asked why [Ms X] would say that the deceased was on the back of the car – was on the front of the car if she was in fact on the back of the car. But, as the prosecutor properly corrected when he returned after the break, you must not proceed by way of asking why would she say this. To do so is to reverse the onus of proof. I repeat the accused bears no onus. He has nothing to prove.

The appellant submitted that, despite the prosecutor’s emphatic backstep and the trial judge’s correction, it would have been very hard for the jury to unthink the “why would she lie about that?” line of reasoning and that their minds would have already been infected by the prosecutor’s comments.

The authorities do not support such an absolute approach. In Doe, after a comprehensive review of cases in which the question “why would she lie?” was raised, Latham J noted at [55] that not all of cases in which the question was directly put to the jury had resulted in a miscarriage of justice. Her Honour identified the following principles relevant to the present case at [59]-[60]: Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by: (i) cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case; (ii) a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie; (iii) a Crown submission to the jury which directly invites them to ask the question "Why would he/she lie?" in order to promote the acceptance of the witness as a witness of truth; (iv) a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect. Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case.

The offending submission in the present case falls well short of the circumstances in which a miscarriage of justice will be established. The jury cannot have been under any misapprehension about their task. The prosecutor’s mistake was immediately walked back by him, then emphatically withdrawn by him after the break, then the subject of clear direction by the trial judge.

Separately, the appellant submitted that the trial judge’s direction was insufficient because her Honour “did not reiterate that regardless of whether [a motive to lie] had been raised, the issue was whether they accepted the critical aspects of [Ms X’s] evidence beyond reasonable doubt” and that “this was particularly significant in circumstances where [Ms X’s] evidence was critical to the Crown case”. As set out above, the trial judge gave the clearest direction on that issue earlier in the summing up. It was not necessary to repeat the point.

The third remark complained of by the appellant as allegedly reversing the onus of proof is based on the prosecutor’s remarks about the evidence of Leading Senior Constable Smorhun, who gave evidence about the appellant’s likely speed at the time he applied the brakes immediately before Ms Jordan fell from the car. For context, it is necessary to explain that Leading Senior Constable Smorhun gave evidence of his opinion based on articulated assumptions. In cross-examination, as is orthodox in the case of expert opinion evidence, he was challenged as to the assumptions he had made. He made a number of concessions about the correctness or appropriateness of the assumptions.

The point made by the prosecutor in respect of that evidence was that, notwithstanding the concessions, the jury would still be satisfied that the accused was driving “at speed”.

In making that point, the prosecutor noted one of the concessions made by Leading Senior Constable Smorhun, which was that the field of view from the CCTV camera “could have been out by a metre or two”. The prosecutor continued: What you then need to go and do in favour of the accused is to undertake the task of, in a similar fashion to what you might think I ultimately asked Leading Senior Constable Smorhun to do, make all of the assumptions in favour of the slowest speed.”

The passage complained about by the appellant immediately followed those remarks. The prosecutor said: That is a fair way and an appropriate way for you to approach Leading Senior Constable Smorhun's evidence bearing in mind the margins for error and the potential assumptions. The point is this, that even when you do that, even when you make all of the assumptions in favour of the accused, the assumptions that Leading Senior Constable Smorhun was asked to make, even adopting the margin for error at its highest in favour of the accused, you still are at a point where that vehicle, as it travels through the field of view and in the moment before the ABS engaged, is going fast.

Shortly afterwards, he said: Even making – [some] of you might decide that in order to discharge your oaths and affirmations you need to make these assumptions in favour of the accused, even making a concession that the ABS braking time was shorter and taking in excess of 10 per cent off the friction value in favour of the accused, Leading Senior Constable Smorhun’s evidence was that that vehicle was still travelling in excess of 40 kilometres an hour at the time immediately before the brakes were applied. That is, you might think on an assessment of his evidence, the best case for the accused. The way I ask you to approach it is this, there is little material difference between 45 kilometre[s] an hour and 63 kilometres an hour when a person weighing what Ms Jordan weighed in on the bonnet of the vehicle, that vehicle travelled as far as it did, heading in what you might have concluded from your view in a slightly downhill direction.

The appellant complains of the use of the expressions “at its highest in favour of the accused” and “the best case for the accused”. He noted that this issue was raised by defence counsel at the trial.

At the trial, defence counsel submitted to the trial judge that the words “the best case for the accused” again introduced “this idea of reversing the onus if one talks about the best case for the accused”. He complained that the prosecutor seemed to have “a tendency to make these frankly unfair submissions which frankly undermine the onus of proof”. He concluded by saying, “there is no best case for the accused. There is what the evidence suggests in light of the retractions and corrections that [Leading Senior Constable] Smorhun made.”

The trial judge asked defence counsel whether he was making an application or “just shooting another warning across the bow”. Counsel responded, “I am shooting a warning, your Honour. And I shouldn’t have to, with respect”.

The prosecutor sought to defend the submission by saying that he was doing no more than asking the jury to adopt the fairest approach or that which was of greatest assistance to the accused in terms of calculating the speed of the vehicle. The trial judge indicated that she understood the point but said the form of words was unfortunate because it suggested that the accused had “a case”.

I respectfully agree that the form of words was unfortunate for the reason identified by the trial judge. However, the prosecutor was making a perfectly legitimate point. It could have been made more simply and in more appropriate language by acknowledging that Leading Senior Constable Smorhun made various concessions but that, even on the worst case for the prosecution, his evidence still established that the Triton was travelling “at speed” along Alfred Hill Drive. However, the infelicitous language did not result in a miscarriage of justice in the circumstances of this case.

The appellant’s final complaint about the alleged reversal of the onus of proof in the prosecutor’s closing address concerned the following remarks made by the prosecutor: Now, ladies and gentlemen, as I understand it, the version of events that you are going to be asked to accept is the one that gives rise to a possibility that the accused is innocent of both the charges is the version that comes through in the AMC calls that you have before you.

The appellant submitted that this reversed the onus of proof in suggesting to the jury that, in order to acquit the accused, they would need to accept a version of events that he had given.

This argument takes a single remark out of context. In that part of the prosecutor’s address, he was making the point that, whereas Ms X’s version of events had remained consistent over the telling on four separate occasions (the 000 call, the first statement to police on the day of the incident, the second statement to police in the EICI two days later and the pre-recorded evidence in the trial), the accused had given three very different versions as to what had occurred. That is a point the prosecutor was entitled to make as going to the accused’s credit.

Before addressing the versions given by each person, the prosecutor explained to the jury (in accordance with the decision of the High Court in Liberato) that it was not a question of “competing versions” or asking themselves “whose evidence do I prefer?”. He gave that caution before going into the detail of Ms X’s evidence (in the remarks set out at [112] above) and again before going into the detail of the versions given at various times by the accused. At that point, the prosecutor said: I now propose to deal with the versions given by the accused. Before I do I reiterate this: if you ask who do you believe, you have failed in your duties. The question is, has the prosecution established the elements of the offence beyond reasonable doubt? In that regard though I expect her Honour will direct you that in the event that you conclude that the accused’s account of what occurred might be true, might be true, then you are duty bound to find the accused not guilty.

The prosecutor then noted that the jury might legitimately ask, by way of response, “which version?”, because there were a number of different versions (from the accused) to choose from. It was in that context that the prosecutor made the remark of which the appellant complains, “as I understand it, the version of events that you are going to be asked to accept is the one that gives rise to a possibility that the accused is innocent of both the charges is the version that comes through in the AMC calls that you have before you”.

As with the previous complaint, the language was unfortunate. It would have been preferable to describe the relevant version as the one the jury was going to be asked to accept “might reasonably be true”. It was the use of the word “innocent” that prompted complaint by defence counsel at the trial.

However, read in the context of the closing address as a whole, there was no unfairness in the prosecutor’s remark. The principles stated in Liberato do not hold that a prosecutor cannot address the jury as to why they should not accept a version of events given by an accused person. The difficulty for the prosecutor was that the appellant had given at least three different versions of events.

The first was the lie he told to a number of people at the hospital that Ms Jordan had fallen from the stairs at the back of her home.

The next was the version told to police during the record of interview. At that time, the appellant admitted to police that the first version was a lie. He explained that he had been trying to get away from the house. He said he “got away, and got around the corner a bit”. He said, “then I stopped the car because I thought maybe she had her wallet and everything there. And then she’s caught up and jumped straight on the back of – on my ute to try and stop me”. Later in the interview, police told the appellant that there was a CCTV camera at a neighbour’s house facing the street. They asked whether that CCTV footage was going to show what he had described. His answer is not recorded because it was “indistinct”. However, the CCTV footage does not show Ms Jordan chasing after the car down Alfred Hill Drive. Indeed, it shows she did not chase the car down Alfred Hill Drive. It may be taken that, when told about the CCTV footage, the appellant appreciated that his second version would also be shown to be untrue.

The third version was the one the accused gave on the phone from the gaol to his father and others after he had been told that there was CCTV footage. His opening line is explained by the fact that, in the time between the police interview and the phone call, Ms Jordan had died.

The appellant said to his father: Yeah, so I got charges to manslaughter now so, um, which is bullshit because – because even – even though – because like when she jumped on the bonnet the first time I jumped out of the car and walked off. And then – then she jumped – then when I come back she jumped back on again. So I drove out the driveway and onto the road and I jumped out and walked off again and then – and then the – then I’d come back and jumped in the car and then she jumped on again so I just drove up the road – end of the road – end of the road with her on the bonnet, and then she got off. So I thought, “okay, cool, excellent.” So I started driving and when I drove – drove around the corner and kept on driving and then next second I looked in my rear vision mirror and there she is on the back. And I thought, “oh fuck”, so I started to slow down and then – and as I was slowing down she looked she was just about – like she was still right and she was just about to jump off. And like she left – lost her footing or something, and then she fell. And I slammed my brakes on real bloody quick as soon as she fell, and that’s when I picked her up and took her to hospital.

The prosecutor was entitled to address the jury as to the inconsistencies between the various versions given by the appellant as a matter going to the appellant’s credit. The fact that the prosecution bears the onus of proof does not mean that an accused person is immune from submissions as to credit.

In addressing those versions, the prosecutor was evidently mindful of the principle in Liberato that “the jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue” (at 515).

The appellant did not give evidence in the trial, but the jury had evidence of the several versions he had given at various times. As the order of closing addresses is that the prosecution goes first, the prosecutor had to anticipate what would be submitted on behalf of the appellant and to do so in the context of the Liberato direction the judge would give in due course. It was in those circumstances that the prosecutor made the remarks objected to (“as I understand it, the version of events that you are going to be asked to accept is the one that gives rise to a possibility that the accused is innocent of both the charges is the version that comes through in the AMC calls that you have before you”).

The prosecutor was entitled to address the jury on his apprehension that the first two versions given by the appellant would likely not be pressed in defence counsel’s closing address (because one was an admitted lie and one was disproved by other evidence). As already stated, it would have been preferable if the prosecutor had referred to the third version as the one the jury would be asked to accept “might reasonably be true”. However, read in the context of the address as a whole, I am not persuaded that there was any unfairness in the alternative formulation, “the one that gives rise to a possibility that the accused is innocent”. For the reasons explained above in the discussion of the “why would she lie?” complaint, this jury cannot have been left in any doubt as to their task.

Finally, the appellant further submitted that the trial judge’s direction concerning the “why would she lie?” submission was insufficient because it failed to address the other occasions on which the prosecutor (allegedly) reversed the onus of proof. As I have explained, I do not accept that the other occasions relied upon by the appellant had that effect.

For those reasons, I would reject ground 4(b)(i).

Although the jury should not have been invited to infer that the two women had the same level of cannabis in their blood, I am not persuaded that this was of any great significance. As submitted by the prosecutor when the complaint was made during his closing address, trial defence counsel had made a forensic decision not to explore with Ms X the extent to which she was affected by cannabis. The level of cannabis in her blood was unknown; the only evidence on the issue was what she said, which was that she conceded feeling the effects of smoking cannabis. The jury was reminded that submissions are not evidence and they were reminded of what the evidence was.

Thirdly, the appellant contended that the prosecutor misstated Ms X’s evidence in relation to what the appellant said when she approached the vehicle. The prosecutor said to the jury “she doesn’t observe the accused saying, “I didn’t know” or “I didn’t see her”. The appellant relied on the fact that, in fact, Ms X gave evidence that the appellant, when asked what had happened, had said “I don’t know” and “I don’t know what happened”. There is no substance in this complaint. The prosecutor’s point was that the appellant did not say, immediately after the accident, that he did not know Ms Jordan was on the car. That was correct. Saying he did not know what happened was not the same as saying he did not see Ms Jordan on the car.

The prosecutor returned to the point (a few pages later in the transcript) where he noted Ms X’s unchallenged evidence that, when the appellant returned to the house at 6:00am, he said: Danielle is in hospital. I do not know what the fuck to do. Like, I’m freaking out. I shouldn’t have done it. Like, how did it get this far? I love her. I love her. I shouldn’t have done it.

The prosecutor’s point in each case was that, according to that evidence, the one thing the appellant did not say was that he had not realised Ms Jordan was on the back of the car. There was no unfairness in those submissions.

Fourthly, the appellant submitted that the prosecutor “invited the jury to find that they could see Ms Jordan on the bonnet of the vehicle in the CCTV” even though he could point to no portion of the recording where that was the case and had not opened the prosecution case on that basis.

This submission does not fairly reflect what the prosecutor said. The impugned remark comes at the end of a lengthy portion of the closing address in which his whole point was that it was a matter for the jury to determine what could be seen on the CCTV footage. He noted that he had made multiple references to the CCTV footage and that they had that footage in various forms and enhanced in various ways. He said, “[w]hat you make of those various portions and extractions from the CCTV footage is quintessentially a matter for you”. He said if they thought they could “discern certain things” they would take that into account but that if they arrived at the view that it was of little assistance because the footage was “just not clear enough” they would put that evidence aside, in which event they would need to consider whether the prosecution had established the elements of the offence beyond reasonable doubt “based on everything else”. He then recapitulated the point he had been making, telling the jury they could use the footage for the things he submitted could be seen (“you can plainly see the vehicle reversing back, you can plainly see it moving at a much faster pace and then going down Alfred Hill Drive”) and then saying “but so far as the precise portion of CCTV where you may or not [sic] think you can see something on the vehicle, and if you arrive at a view it’s not sufficient quality, you just, in my submission, would put it to one side and consider the rest of the evidence”. That is the impugned remark. It was scarcely an invitation to find that they could see Ms Jordan on the bonnet. If anything, the jury may have taken the prosecutor to be implicitly accepting that Ms Jordan cannot be seen on the car in the footage. The burden of the submission was, “you may or may not, it’s a matter for you”.

Fifthly, the appellant submitted that the prosecutor suggested that Ms Jordan may have been on the rear of the vehicle at some other time. The appellant noted that Ms X was not questioned about that possibility. He contended that there was “no evidence whatsoever” as to Ms Jordan being on the rear of the vehicle at any time other than the time at which she fell. That is wrong. As already noted, the appellant told police in his record of interview that, when he was trying to leave the house, Ms Jordan got on the back and got off again. The relevant answers are set out above.

Sixthly, the appellant relied on the prosecutor’s suggestion that the dust disturbance on the rear was significantly less than on the front. The appellant submitted that there was no basis for this submission and that it is “plainly inconsistent with the photographic evidence”.

I do not think there is any force in this complaint. The photographs were there for the jury to see. They were directed that submissions are just submissions and that the assessment of the evidence was a matter for them.

Seventhly, the appellant relied on the fact that the prosecutor suggested to the jury that the evidence of the broken windscreen wiper was consistent with its having been broken when Ms Jordan was on the bonnet. He noted that this was not put to Ms X and that an explanation was given by the appellant for the broken wiper. He submitted that there was no basis for the jury to draw an inference that Ms Jordan was hanging onto the wiper.

I do not accept that submission. As noted in the prosecution submissions on appeal, the submission was made in the context of the trial prosecutor noting that the appellant had given police a version of events as to how the windscreen wiper came to be broken. The prosecutor told the jury this was a matter for their assessment and said he would “simply ask [the jury] to note that it seems the broken wiper is in the general area of where [Ms X] described Ms Jordan initially hanging onto the lip of the bonnet”.

The submission was properly made. If Ms Jordan was holding onto the bonnet in the manner described by Ms X, there is every likelihood that she would have grabbed the windscreen wiper as she slid off. That was a submission that was open on the evidence and properly put in response to the version given by the accused. A trial prosecutor’s obligation of fairness does not require them to be entirely passive.

Finally, the appellant relied on the fact that the jury was asked to consider whether the state of the canopy was consistent with anyone being on it. The appellant noted that there was no evidence from any police officer or forensics as to the strength or robustness of the canopy. In the absence of any evidence about the nature of the material from which the tonneau cover was made, the prosecutor’s submission on that issue invited speculation and probably should not have been made, particularly standing alongside the submission (properly made) that Ms Jordan could have been on the back of the Triton at some time other than the point when she fell. However, the jury was directed that counsel’s submissions were just that. They were directed that the assessment of the evidence was a matter for them and that no one could tell them how to decide the case. They were directed more than once that, unless they were satisfied beyond reasonable doubt that Ms Jordan was on the bonnet when she fell, they must acquit. I am not persuaded that the point about the state of the tonneau cover resulted in any unfairness.

The appellant submitted that, in combination, these misstatements of the evidence on the part of the prosecutor created the potential to affect the result of the trial. He submitted that, although the jury was directed that the addresses of counsel were not evidence, the jury was invited to reason from the evidence in a manner that was not open to them. For the reasons explained above, I am not persuaded that the prosecutor made misstatements that had the capacity, individually or taken in combination, to affect the result of the trial or resulted in a miscarriage of justice.

The appellant submitted that the trial judge’s directions did not “cure the impropriety”. The only issue as to which the trial judge was asked to (and did) give a corrective direction was the issue of the level of cannabis in Ms X’s blood. The relevant exchange and the direction given are considered above in the discussion of ground 4(b)(i).

The appellant accepted that it is not ordinarily appropriate for a trial judge to give an opinion on the evidence but submitted that there will be circumstances in which fairness requires the trial judge to correct an impression mistakenly left by a party’s “plainly untenable suggestion” as to an inference to be drawn from the evidence. The appellant submits that the inferences relied upon here fell within this category.

The expectation that the trial judge will not ordinarily express any opinion about the evidence is founded in the constitutional roles of judge and jury respectively. The judge’s overriding function is to ensure that the trial is fair. The proper discharge of that function will occasionally require that some comment correcting an overly zealous submission be made, but that should be done sparingly. The judgment as to when a correction is called for is one the trial judge is ordinarily best placed to make, balancing the entitlement of both parties to a trial that is fair (not perfect). As I had occasion to say in a previous case, the law does not assume that juries are witless: JH v R [2021] NSWCCA 324 (McCallum JA at [24], N Adams J and Cavanagh J agreeing at [41] and [42]). It is appropriate, having regard to the respective functions of judge and jury, to leave the facts to them, with appropriate direction as to how they are to go about their task. There can be no criticism of the trial judge’s approach in the present case. Her Honour stayed within the confines of her constitutional role as the judge of the law.

Finally, it is necessary to address the submission that there was unfairness in the prosecutor inviting the jury to draw an inference from which he later resiled at the proceedings on sentence. The appellant argued that, had the concession been made during the trial, the result may have been different.

There are two difficulties with that submission. First, it mistakes the effect of the concession in fact made at the proceedings on sentence. Secondly, it overlooks the significance of the different functions of jury and sentencing judge.

The inconsistency between the answers given by Ms X in cross-examination (where she appeared to accept that the appellant reversed all the way to the bottom of Coutts Place) and what she told police (that he reversed “back down to here” when she was standing outside Ms Jordan’s house) was a matter for the jury’s assessment. Importantly and perhaps unsurprisingly, the prosecutor did not adopt the version given in cross-examination. In addressing the jury as to what he argued was the consistency between Ms X’s evidence and the CCTV footage, he acknowledged one matter of difference, if not inconsistency (the fact that she had not mentioned that the engine stalled): One of the things that you will need to consider is that [Ms X] does not describe in terms of the accused’s engine switching off. That is something you will need to take into account when you sit [Ms X’s] version against the CCTV. You can hear the engine start. There’s no getting away from it.

The prosecutor then went on to invite the jury to accept that the next part of the CCTV footage was consistent with Ms X’s account: I’ll return to the timing shortly but the important and critical aspect is what [Ms X] tells you happens next. He reversed all the way back down to Danielle’s house.

The prosecutor then played a portion of the CCTV footage and then said: That, ladies and gentlemen, is the accused reversing his car back down Coutts Place, exactly as [Ms X] described it.

At no point did the prosecutor invite the jury to accept that the Triton had reversed all the way to the end of Coutts Place.

At the proceedings on sentence, the prosecutor conceded that the Triton did not reverse all the way down to the end of Coutts Place. There was no inconsistency between that concession and what the prosecutor had invited the jury to accept. The concession did not have the effect of conceding a point that had not been conceded during the trial.

Secondly, the submission overlooks the respective tasks of the jury and the sentencing judge. While the jury is directed that they need be satisfied only as to the essential elements of the offence, the trial judge is often required at any proceedings on sentence to make additional findings of fact that are consistent with the jury’s verdict but which go to the seriousness of the offence. The prosecutor’s concession was made in fairness to the offender. It was a concession that reduced the seriousness of the offence. It did not derogate from the soundness of the verdict because it was entirely consistent with the case put to the jury by the prosecution.

For those reasons, I would reject ground 4(b)(iii).

The appellant relies on the fact that, in his closing address, the prosecutor told the jury that in relation to manslaughter the prosecution case was that the appellant drove with the objective of dislodging Ms Jordan from the vehicle. The appellant submits that the reference to the objective being consistent with an intention to kill or cause grievous bodily harm rather than the reckless indifference on which the Crown had opened created the risk that the jury would confuse the different mens rea requirements for the offence of murder and manslaughter.

I do not accept that submission. As submitted by the Director of Public Prosecutions in the appeal, the trial judge’s directions, which conformed to what had been agreed in the absence of the jury, drew a clear distinction between foresight or realisation that driving at speed would probably cause Ms Jordan’s death but continuing regardless (murder) and driving without that foresight or realisation but with the intention of having Ms Jordan fall off the vehicle onto the roadway (manslaughter). This conclusion is fortified by the fact that trial defence counsel made no complaint as to the formulation of the unlawful and dangerous act element by the prosecutor and the trial judge, no complaint as to the way in which the prosecutor addressed the jury on this issue in his closing address and no complaint as to the trial judge’s directions. As submitted by the Director of Public Prosecutions, that is cogent evidence that trial defence counsel saw no prejudice or risk of confusion on the part of the jury as to their task.

The Director of Public Prosecutions submits that this ground requires leave under r 5531 and that leave should be refused. As this ground was framed as a complaint about the conduct of the prosecutor (albeit one that incidentally raised an issue concerning the directions of the trial judge), I am inclined to think that r 5531 does not apply. I would reject ground 4(b)(iv).

This ground requires leave under r 5531 as objection was not taken at the trial to the alleged failure adequately to direct the jury on that issue. It is accordingly necessary to pay close attention to the exchanges that took place when the issue was raised.

The jury’s note asked if they could view both Ms X’s and her mother’s recorded evidence again. Trial defence counsel reminded the trial judge that she had foreshadowed directing the jury that they were to bear in mind they had not been replayed the other evidence and that they needed to put the evidence into perspective.

The trial judge responded as follows: So, the direction I’d be proposing to give them is this, “you are listening to the evidence of [Ms X] and Ms Leonard, given a second time, and well after the other evidence. You must guard against the risk of giving this evidence disproportionate weight for that reason. You must bear in mind all the other evidence in the case.”

The trial judge then asked trial defence counsel whether he wanted “a specific reference to the accused’s record of interview or any other evidence at that point. He responded “[n]o, just the other evidence. Thank you, your Honour.”

The decision not to have the jury reminded of the accused’s record of interview at that point must be taken to have been a deliberate forensic decision, given that the version told to police in that record of interview was proved incorrect by the CCTV footage. In such cases, there is always a difficult balance for the trial judge to strike between, on the one hand, reminding the jury of any arguments favourable to the accused and, on the other hand, not reminding the jury of obvious points against the accused. Sometimes, the safest course is to say less rather than more. The appellant’s reliance on Gately rather tends to assume a dichotomous analysis of the replayed evidence and the countervailing evidence. Not every case fits neatly into that binary classification.

No doubt recognising the potential for such complexities, the High Court in Gately did not purport to prescribe a mandatory direction or immutable practice for directing a jury that seeks access to pre-recorded evidence during the jury deliberations. The Director of Public Prosecutions relied in this context on the observation made by Hayne J in Gately at [96], that what will ultimately be required by way of directions and warnings will depend on the facts and circumstances of the case with the overriding consideration being fairness and balance of the evidence. The Director of Public Prosecutions further relied in this context on the decision of the New South Wales Court of Criminal Appeal in Stevenson v The Queen [2022] NSWCCA 133 at [57]-[58] and [65]-[67] where that Court held that the failure to adopt the procedures or suggested warnings of the kind suggested in Gately does not of itself give rise to a miscarriage of justice.

The Director of Public Prosecutions submitted that the trial judge’s warnings were adequate to address the risk that the jury would give the replayed pre-recorded evidence undue weight. It was noted, first, that the jury’s request to view the evidence again came shortly after the conclusion of the summing up. Before sending the jury out again on verdict after a long weekend, the trial judge reminded them of the onus and standard of proof and the fact that the accused did not have to prove anything. They retired at 10:00am. They were brought back in at 11:19am with a note requesting to see the evidence in chief interview conducted on 17 April 2022. The trial judge directed them that, as the evidence in chief interview was not an exhibit, they could not have it in the jury room, but they could ask to view it in open court. At 12:45pm, the court reconvened after the jury sent a note asking to do that.

During a break in the replaying of the video, trial defence counsel drew the trial judge’s attention to a passage in the Chief Justice’s judgment in Gately about the necessity “in appropriate cases” of reminding the jury of arguments of the accused.

Trial defence counsel said: Now, I’m not – I just feel obliged to mention it, your Honour, because – and I am not expecting, with respect, your Honour to regurgitate the arguments of counsel but I think maybe as a counterpoint… If your Honour can just reinforce maybe in terms of (a) and (b) of those points with reference to counsel’s arguments...

The trial judge asked whether there was any specific argument counsel wished her to address. Her Honour noted the undesirability of descending into a process of reminding the jury of what the accused said and what the prosecution said. She proposed “in more neutral terms” reminding the jury to consider the replayed evidence against the whole of the evidence and also counsel’s closing addresses. Her Honour ultimately proposed that she would give that reminder at the conclusion of the replaying of the evidence. Trial defence counsel agreed to that course.

At the conclusion of the evidence, the trial judge said: Members of the jury, that’s the conclusion of [Ms X’s] evidence. I again remind you to consider the whole of the evidence, including the CCTV from 1 Flower Place as well [as] counsel’s addresses when considering the evidence you’ve just heard.

The trial judge then proceeded to replay Ms Leonard’s evidence and, before doing so, reminded them of what she had said before replaying Ms X’s evidence “about the importance of not giving evidence disproportionate weight because you are rehearing these portions of the evidence and not other portions of the evidence”. Her Honour reminded the jury to consider the replayed evidence in the context of the whole of the evidence in the case and in particular what counsel had said in their closing addresses.

No concern was raised following those directions.

In my assessment, the position adopted by trial defence counsel and the approach taken by the trial judge reflected good forensic judgment in the circumstances of this case, for the reason already explained. I am not persuaded that there was any miscarriage of justice. There was forensic risk for the appellant in reminding the jury of his various versions of events at that point in the jury’s deliberations. The principal point to be made in his favour was to remind the jury of the arguments about the CCTV, but trial defence counsel expressly accepted that there was no need for her Honour to “regurgitate” those arguments.

Having regard to the careful exchange on this issue initiated by the trial judge and the fact that trial defence counsel clearly made a forensic choice in the position he adopted, leave to rely on this ground should be refused.

To the extent that the submission was put, in my assessment it was not a reasonable hypothesis. On the version accepted by the jury, it was Ms X’s action, not the appellant’s patience, that initially stopped him from driving off with Ms Jordan on the bonnet. Ms X described him as “schizo” and “really angry” at that point. Once he had frightened Ms X out of the way, he was no longer waiting, patiently or otherwise, for an opportunity to leave; he was off, with Ms Jordan on the bonnet. Whatever concessions were made by Leading Senior Constable Smorhun, it is beyond doubt in my view that the appellant was driving too fast down Alfred Hill Drive not to foresee the probability that Ms Jordan would fall onto the road and suffer mortal injury. I do not consider it reasonably possible that the appellant did not have the necessary foresight to establish recklessness at that point.

Further, in my respectful opinion, the hypothesis accepted by Taylor J is excluded from consideration by this Court by the appellant’s versions of events, just as in Baden-Clay. The High Court said in that case at [48]: a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue”. [citations omitted]

In Baden-Clay, the accused was charged with the murder of his wife. He gave evidence at the trial to the effect that he had nothing to do with the circumstances in which she was killed. He was convicted by a jury. On appeal to the Queensland Court of Appeal, he accepted that it was open to the jury to be satisfied beyond reasonable doubt that he had unlawfully killed his wife, but contended that they could not properly be satisfied of the necessary intent for murder: R v Baden-Clay [2015] QCA 265 at [38]. The Court of Appeal upheld the appeal on that basis, finding at [48]: there remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict.

The High Court held at [58] that the Court of Appeal “should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent's evidence could be disregarded as if it had not been given at all”.

The position here is not the same because the appellant did not give evidence in the trial. Mr Baden-Clay did, and that was a premise of the High Court’s analysis as to what inferences were open to the jury and as to the limits on the role of the Court of Appeal. Even so, as Taylor J accepts, any inference as to the appellant’s state of mind must be informed by “the nature and manner of his driving” and his conduct before and after Ms Jordan fell. None of the appellant’s out-of-court versions addressed the nature and manner of his driving with Ms Jordan on the bonnet, because he denied she was there. The point made by the High Court in Baden-Clay at [57] was that, the accused having given evidence that he had nothing to do with the killing of his wife, “it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility”.

In the present case, the appellant’s version was that Ms Jordan was not on the bonnet. He gave no account of his acts or his state of mind on the premise that she was, as the jury must be taken to have found. Accordingly, any inference as to the appellant’s state of mind in that different and necessarily inconsistent circumstance necessarily calls for speculation as to the factual basis for any such inference.

Taylor J has undertaken a careful analysis of the evidence on that issue. In my respectful opinion, however, it is necessarily speculative to hypothesise that the appellant might have been driving slowly and carefully enough to exclude what was otherwise an obvious and probable consequence of driving down a road with a person on the bonnet.

That was the vice of the reasoning of the Court of Appeal identified by the High Court in Baden-Clay. The Court of Appeal hypothesised a factual scenario (“he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm”). The High Court held at [59] that this hypothesis was “contrary to, and excluded by, the case that the respondent put to the jury”. The position is the same here. The appellant’s version was that he was driving as one would without a person on the bonnet. Once it is accepted that Ms Jordan was on the bonnet the whole way – as he persisted in inching up Coutts Place while Ms X walked backwards in front of him, literally putting her body on the line to stop him from driving off; as he swore or exclaimed in frustration at the top of the road; as he reversed backwards and the “zoomed” towards Ms X to frighten her out of the way; as he turned the corner and then drove for 200 metres downhill – any hypothesis as to his nonetheless driving in a manner that did not carry the obvious likelihood of fatal injury those acts carried is speculative.

The Director further submitted that this was clearly a forensic decision. As already indicated, I agree. The Director noted in that context that, trial defence counsel having made “repeated references to Ms Jordan’s size and stature which were relied upon to support the notion it was likely Ms Jordan was on the back of the car without the appellant knowing … there was a forensic risk in [trial defence counsel] embracing the proposition that Ms Jordan was on the bonnet as he drove away, but that the jury would conclude the appellant did not turn his mind to the probable fatal consequences of his actions”.

Both parties’ further submissions made reference to the recent decision of the High Court in The King v ZT [2025] HCA 9; 99 ALJR 676. The appellant submitted that, because the reasoning in his further submissions is “capable of being encapsulated” within the unreasonable verdict ground, his position in his further submissions does not fall foul of what the High Court said in that case at [11] (Gageler CJ, Gleeson, Jagot and Beech- Jones JJ). I reject that submission. In the passage relied upon, the High Court said: Third, M v The Queen requires that the appellate court undertake an “independent assessment” of the sufficiency and quality of the “whole of the evidence”. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.

In my respectful opinion, Taylor J’s decision (with which Loukas-Karlsson J agrees) contravenes those principles. This is not in the nature of what might in another field of jurisprudence be termed a technical pleading point. Observance of the adversarial nature of criminal proceedings and confinement to the issues raised by the parties is an incident of the requirement of impartiality.

The Director’s further submissions relied in this context on the remarks of McHugh and Hayne JJ in their dissenting judgment in Gipp v The Queen [1998] HCA 21; 194 CLR 106 at [48]-[52]. The appellant in that case had in the High Court raised two errors that had not been identified in the trial or on appeal to the Queensland Court of Appeal. In the High Court, he submitted: the duty of an appellate court to be vigilant and to conduct its own independent inquiry must extend to an assessment not only of the evidence but also of the circumstances attending the conduct of the trial. It must be satisfied not only that upon the whole of the evidence that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, but it must also be satisfied that there is nothing apparent on the record which constitutes a failure in observing the conditions essential to a fair trial or which raises a substantial possibility that the jury may have been mistaken or misled.

McHugh and Hayne JJ rejected that suggested test for determining whether a conviction is unsafe or unsatisfactory or constitutes a miscarriage of justice. After noting that it was unsupported by authority and would place an inordinate burden on courts of criminal appeal, their Honours said: Moreover, such an approach would be contrary to the adversarial nature of our legal system, which relies on an impartial judge as arbiter of the issues and which requires that the parties determine which issues will be put before a court for decision.

Their Honours proceeded to explain the importance of respecting the tenets of an adversarial system by reference to the institutional role of the courts. Acknowledging “the duty of trial judges and courts of criminal appeal to take every step that they thought was appropriate to protect the accused’s interests at the trial or on appeal”, their Honours continued at [55]: But it is quite a different matter to say that an appellate court has a duty to examine the whole record and determine whether that record contains error requiring the quashing of the accused’s conviction notwithstanding that the appellant has not relied on an issue or on evidence. Courts of criminal appeal would no longer be courts of appeal; they would be tribunals for the judicial review of criminal convictions. Their role would cease to be that of an appellate court deciding issues selected by the Crown and the accused. They would necessarily become active parties in the proceedings; the members of an appellate court would become judicial ombudsmen whose function was to investigate the records of criminal trials to determine whether convictions should be set aside because of some factual or legal error on the part of the trial judge whether or not the appellant had raised the error. Inevitably, the investigatory function of the “court” would break down the doctrine of separation of powers and result in appellate courts becoming part of the executive branch of the State, as they effectively are in many jurisdictions that reject the adversary system of justice.

I share the concerns expressed in those remarks. The constraints of an adversarial system are an aspect of the institutional role of the courts. As submitted by the Director, while the judgment of McHugh and Hayne JJ in Gipp was a dissenting judgment, and was not cited in ZT, that is the principle echoed in ZT at [11].

As was observed in ZT at [9] citing Dansie v The Queen [2022] HCA 25; 274 CLR 651 at [17] with respect to the jury’s advantage, the nature and scope of those advantages will “vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial”.

Applying those principles, after performing my own independent review of the sufficiency and quality of the whole of the evidence, the doubt that I had entertained with respect to the presence of Ms Jordan on the bonnet of the vehicle, is a doubt that I am satisfied can be explained by the advantage of the jury in seeing and hearing the evidence, which included a view of the scene where the incident occurred.

However, the reasonable doubt I have with respect to proof of reckless indifference on the part of the appellant, which is necessary to establish the offence of murder, is not a doubt that I consider can be explained by the advantage of the jury. In coming to that conclusion, I have been careful not to merely substitute my own assessment of the evidence for the assessment the jury was entitled to make. Noting my conclusion relates to the state of mind of the appellant, I have heeded the caution of Kirby J in Cutter at 649, where his Honour (citing Knight v The Queen [1992] HCA 56; 175 CLR 495 at 511 in dissent), observed, “[t]he conclusion, on the elusive matter of intention, may emerge more forcefully from the impressions derived during the trial than from reading ‘the printed transcript of the evidence’”.

Notwithstanding the wisdom of that caution I am certain that the doubt I have is not resolved by the jury seeing and hearing the evidence during the trial. Like Hamill J in Dawson v R [2025] NSWCCA 85 at [134] I have concluded that “in drawing inferences from the direct evidence, and deciding whether all inferences consistent with innocence have been excluded, the trial court has no discernible advantage over this Court in considering the whole of the record of the trial: cf Coughlan v The Queen [2020] HCA 15; 267 CLR 654 at [52], [55].”

In Coughlan, the High Court observed that an acknowledgement of the advantage of the jury with respect to seeing and hearing the witnesses in a trial “did not relieve the appellate court of assessing the capacity of their evidence, taken with the other circumstances on which the prosecution relied” to prove guilt (at [52], [55]) and concluded: An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open (Footnote omitted).

Whilst I do not disagree with the treatment by the Chief Justice of the ground of appeal which asserted error with respect to the trial judge’s redirection on “probability” in light of the position adopted by the appellant’s counsel, it is uncontroversial to acknowledge that which R v Grant [2002] NSWCCA 243; 131 A Crim R 523 affirmed at [33] (citing The Queen v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 10) namely, that the probability of death means a likelihood which is a “substantial or real chance as distinct from a mere possibility”.

The conclusion I have drawn about proof of reckless indifference defers to the findings of the jury with respect to the reliability of the evidence of Ms X. The evidence presented in the trial, detailed in the judgment of McCallum CJ and upon which I have formed my assessment can be summarised as follows: (i) The appellant and Ms Jordan were involved in a tumultuous relationship. The appellant attended Ms Jordan’s residence at 6 Coutts Place with the intention of staying the night. In the early hours of the morning of her death they argued about him leaving her residence. The appellant did leave Ms Jordan’s residence only to return and the argument continued. (ii) Ms Jordan was a slightly-built woman. The appellant’s vehicle was a utility vehicle. (iii) As part of the conflict between them Ms Jordan got onto the appellant’s vehicle and settled on the bonnet of the vehicle. Ms Jordan would not get off the vehicle. (iv) In response to Ms Jordan’s refusal to get off the vehicle, the appellant “inched” the vehicle up the incline on Coutts Place. Ms X stood in front of the vehicle after Ms Jordan told her do so. The appellant “inched” it forward up the hill while Ms X, still in front of the vehicle, stepped back from it. As part of this process the vehicle engine stopped and restarted quickly near to the intersection of Coutts Place with Alfred Hill Drive. (v) The appellant then reversed the vehicle down the hill on Coutts Place coming to a stop near Ms Jordan’s home; a distance of around 57 metres. Ms Jordan was still on the bonnet of the vehicle. Ms X remained where she had come to stop after stepping back as the vehicle inched forward. (vi) After reversing the vehicle down Coutts Place the appellant drove the vehicle “at speed” back up Coutts Place to where Ms X was standing and she jumped out of the way of the vehicle, fearing it would hit her. Ms Jordan was on the bonnet of the vehicle. (vii) The appellant continued to drive and turned left onto Alfred Hill Drive. Ms Jordan remained on the bonnet of the vehicle. Ms X yelled out “Michael!”. (viii) The vehicle progressed along Alfred Hill Drive. Ms Jordan fell from the vehicle at a point 209 metres from where Coutts Place intersected with Alfred Hill Drive. The vehicle made a “screech” sound. (ix) Ms X was running behind the vehicle but did not see Ms Jordan fall from the vehicle. (x) The appellant got out of the vehicle and yelled words which included “you dickhead”, “you fucking idiot” and “why did you do this to me?” immediately after Ms Jordan fell from the vehicle. The appellant picked Ms Jordan up from the road, placed her in the vehicle and transported her to hospital. (xi) The appellant later said to Ms X “I shouldn’t have done it”.

After a careful, independent review of the whole of the evidence and accepting the reliability of the evidence of Ms X with respect to the presence of Ms Jordan on the bonnet of the vehicle, I am of the view that the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant with respect to murder. That is, they must have entertained a doubt about whether the appellant knew that the probable result of driving in the manner that he did, with Ms Jordan on the bonnet, was her death and knowing the likelihood of that result, he went ahead and did the act regardless.

Put another way, I do not consider that the jury could have rejected, as a rational inference, the possibility that the appellant drove the vehicle with Ms Jordan on the bonnet without knowing or realising that her death was probable.

At the outset I acknowledge that this element of the prosecution case was not originally nor specifically raised by the appellant as a part of appeal ground 4(a). Accordingly, I initially formed a view without the benefit of full argument.

As McCallum CJ sets out at [244]-[246], it became apparent that to finalise the appeal it was necessary to seek further submissions from the parties on the issue and I have now had the benefit of comprehensive submissions. I have since revised my judgment and in doing so have incorporated the additional submissions from the parties in my analysis.

Having had the benefit of submissions from the parties, I remain of the view that the jury ought to have entertained a doubt with respect to proof of reckless indifference.

I am mindful of the need to have regard to the conduct of the defence at trial and the issues that consequently emerged. I agree with McCallum CJ that the adequacy of the evidence with respect to reckless indifference did not strictly fall within a consideration of appeal grounds 4(b)(i), 4b(iii) or 4(e).

In addition to the ultimate conclusion as to ground 4(a), there are two matters about which the Chief Justice and I differ that I must address. First, whether proof of reckless indifference was raised at trial. Secondly, whether it is open to this Court to consider it on appeal as part of the assessment of whether the verdict was unreasonable.

The conduct of the appellant’s defence at trial was not “all or nothing”. Whilst senior counsel made clear to the jury that there was a critical issue as to the presence of Ms Jordan on the bonnet, it was also clear that there was a contest as to the capacity for the evidence to establish reckless indifference. Indeed, a consideration of reckless indifference only became necessary if the jury found that Ms Jordan was on the bonnet of the vehicle when she fell from it. Senior counsel, whilst careful not to “embrace” the alternative proposition, did not ignore the significance of reckless indifference on the evidence.

The conduct relied upon for the offence of murder was the same conduct for the alternative offence of manslaughter. The case for manslaughter was put as the “unlawful and dangerous act” of the appellant driving with Ms Jordan on the bonnet of the vehicle intending to dislodge her. The same conduct, accompanied by a realisation by the appellant that her death was probable, was the case for murder. The mental element then was the critical distinguishing feature between the two offences.

The resolution of the contest with respect to whether Ms Jordan was on the bonnet alone did not answer the question as to which of the offences had been proved on the prosecution case. A finding that Ms Jordan was on the bonnet of the vehicle when she fell from it required the jury to go on and determine what mental state the appellant had when he drove the vehicle in those circumstances. The approach of senior counsel for the appellant was entirely consistent with that reality.

Counsel for the appellant made the following closing submission to the jury: I remind you Smorhun also gave evidence that, had the car accelerated from the – at full capacity from the time that it left the CCTV footage, it could have got up to 100 kilometres an hour. That was his evidence. And I have already put to you – take that back to the corner of Coutts Place, and he comes around at speed which you can see – if he had, you could see he didn’t because you’ve seen it on the CCTV, but if he had been trying to dislodge Danielle Jordan from the bonnet in some kind of rage, which is what it seems to be suggested, he could have been going a lot more than 100 kilometres by the time he reached the corner of Cade Place [sic]. So you have to really bear that in mind, as I said to you, that’s really the Crown case on murderous intent. It’s a very strange murderous intent, you may think.

Further on toward the end of his closing address counsel further submitted to the jury: I want to close this closing address just by dealing with the issue of reckless indifference. Essentially this is a murder trial. Essentially, the mental state if you like – what the lawyers call mens rea – is the reckless indifference. And again, her Honour will of course give you clear directions about that. My primary submission to you is, of course, that you'll have a doubt about whether Danielle was on the bonnet at the relevant time, and of course, if that's the case, then it's not guilty on both charges. I don't want to weaken that submission by referring to other possible scenarios, because they're not borne out, in our submission, on the evidence. But I will say this: I submit that on the evidence – the evidence doesn't on any view support Michael O'Connell having a reckless indifferent state of mind. He was trying patiently you may think to leave, Danielle was trying to stop him. He didn't rush off, he waited. You might think he waited until he thought she was finally off the car. I have already referred to the anger turning immediately to shock and despair when he realised that Danielle had fallen off the car. He cradled her tenderly like a baby and rushed her to hospital. He was distraught. And just to illustrate that – you may have forgotten this piece of evidence, but I remind you of one of Danielle’s relatives who gave pre-trial evidence and that is Ashley Crump, and I will just acquaint you with that evidence again. So, Mr Crump was I think a half brother to Danielle and had been brought into the hospital and it was all pretty terrible, but this is what Mr Crump said: So certainly in the time that you observed Michael’s interactions with Danielle he was clearly distraught? ---That is correct. And he was very emotional? ---Very much so. Now, I think he actually addressed Danielle directly whilst speaking to her saying things like, ‘Danielle, you’re beautiful’? ---Yes, some – I can’t remember the exact words but they were along those lines, yes. And so, this is when they’re all in with Danielle in hospital in those terrible circumstances. So that is relevant to this case when the Crown puts a case of reckless indifference to the life of Danielle. And in that regard, as I have already said to you, there is nothing to indicate this driving is furious. There is no swerving, there is no accelerations, there is no braking that is relied upon by the Crown. Michael was just driving and none of that supports the notion that he was recklessly indifferent to her. Indeed, you have heard many times in his evidence his profession of love to her, which was a love that she certainly returned on the evidence.

The Director’s submission that “as a practical matter, the jury were presented a very narrow issue to resolve, being whether they could be satisfied beyond a reasonable doubt Ms Jordan was on the bonnet and the case largely, if not exclusively, rose and fell on this critical issue” does not grapple with the way manslaughter and murder were put to the jury. As I have observed, a finding of guilt for murder did not follow from the resolution of the contest about Ms Jordan’s presence on the bonnet. The presence of Ms Jordan on the bonnet was the necessary pathway to a finding of guilt on either offence. Once satisfied of that fact, the outcome as between the alternative offences “rose and fell” on the state of mind of the appellant.

Consistent with her obligation to identify the real issues and with the conduct of the defence, the trial judge identified in her directions to the jury that reckless indifference was an element about which they would need to be satisfied beyond reasonable doubt to find the appellant guilty of the offence of murder. The two questions asked by the jury which sought clarification about reckless indifference, demonstrated some understanding that there was a contest, even if Ms Jordan was on the bonnet of the vehicle when she fell from it, about whether the appellant was recklessly indifferent.

The trial judge made plain that the difference between the case for murder and the case for manslaughter was the difference between the appellant driving with Ms Jordan on the bonnet of the vehicle knowing that her death was probable and a determination by him to drive regardless (murder) and the appellant driving with Ms Jordan on the bonnet with the intention of dislodging her from the vehicle (manslaughter). There was no suggestion in the directions to the jury or the answers given to their questions that the case for murder “rose and fell” entirely on the resolution of whether Ms Jordan was on the bonnet when she fell from the vehicle.

Respectfully, I do not consider that the conduct of the trial in this instance and the view I have formed relies on ‘speculation’ or a hypothesised factual scenario excluded by the case the appellant put to the jury. A rejection of the versions given by the appellant as to the presence of Ms Jordan on the bonnet did not inevitably lead to a finding that he was recklessly indifferent. The trial was conducted accordingly.

Whilst reckless indifference was not identified as a specific issue for consideration under ground 4(a), the inclusion of grounds of appeal which did require consideration of reckless indifference confirms my view that it was an issue directly raised in the trial.

There are three matters I observe in response to that concern. First, if in light of the questions asked by this Court seeking further submissions from the parties, the appellant had sought to amend his grounds of appeal to include reckless indifference as a specific issue under ground 4(a), I would have granted leave to do so and allowed the appeal: see similarly Gaudron J in Gipp at [23]. Secondly, the treatment of reckless indifference was raised in the appeal albeit under specific grounds alleging error in the trial. Finally, and perhaps most significantly, the focus of the unreasonable verdict ground being the factual foundation necessary for a finding of guilt for both offences, in my view necessarily and properly raises for this Court’s consideration whether, having concluded that Ms Jordan was on the bonnet of the vehicle when she fell from it, it was open to the jury to find the appellant guilty of murder.

Put another way, I do not consider reckless indifference to be a “second round” point on the appeal. It was raised as an issue for this Court to consider under other grounds of appeal and in coming to consider whether the verdict was unreasonable it is, as the appellant submitted, “inextricably” bound up in an assessment of the factual dispute around which the ground was framed.

Having determined that the issue was contested at trial and that my approach does not contravene the principles which guide this Court’s role, it follows that I do not consider that this Court is precluded from considering reckless indifference under ground (a).

In coming to that conclusion, I have considered the following matters.

First, the admission relied upon by the prosecution, “I shouldn’t have done it”, was neutral with respect to proof of the state of mind necessary to establish reckless indifference for murder. The presence of Ms Jordan on the bonnet of the vehicle was a finding necessary for murder and for manslaughter. “I shouldn’t have done it” does not admit of any matter that might distinguish between the two different mental elements. In addition, I observe that the prosecution did not rely on any lies contained in the appellant’s versions of the incident as evidence of a consciousness of guilt nor on the admission as to the establishment of reckless indifference.

Secondly, the nature and manner of the driving. Whilst the appellant’s driving was consistently characterised as “at speed”, it was not the case that the appellant was alleged to have been travelling at a speed above any applicable speed limit. The prosecutor submitted to the jury: …there were various speeds posited between 30, 40, 50, 60 I won’t take you in painful detail through it. What I simply say to you is as you go about assessing the evidence, take all the assumptions in favour of the accused and what you still reach is a point where that vehicle was going fast. Fast in the sense of Ms Jordan is positioned precariously on the bonnet.

The “at speed” and “fast” description served to highlight that the prosecution case was that the vehicle was moving at a speed faster than “slow” and was not stationary when Ms Jordan fell from it. Professor Duflou’s evidence supported that the vehicle was moving and not “slowly” when Ms Jordan fell from it. So too the evidence of Ms X. Her evidence as to the speed of the vehicle as it drove toward her on Coutts Place was that it was “so fast” after the appellant “put his foot down all the way on the pedal”. Of course, Ms X, positioned as she was outside the vehicle, could not have known whether the appellant did apply the accelerator “all the way” and her evidence as to speed was her impression of it as the vehicle travelled toward and past her.

The evidence of Professor Duflou and Ms X sat alongside that of Leading Senior Constable Smorhun who was the prosecution expert witness with respect to the speed of the vehicle. Leading Senior Constable Smorhun made a number of significant concessions in cross-examination.

In his evidence in chief Leading Senior Constable Smorhun told the jury that the speed of the vehicle when it passed through the field of view captured by the CCTV camera was 42.5 kilometres per hour and that the vehicle continued to accelerate as it moved out of the frame of the CCTV camera “up until the point that it starts the emergency brake”. His evidence was that at the time the brakes were applied the vehicle was travelling at 63.1 kilometres per hour “rounded down” to 63 kilometres per hour.

In cross-examination Leading Senior Constable Smorhun conceded that discrepancies in the CCTV images left a margin of error because the images were possibly a “metre or two out” in terms of plotting where the vehicle was from the time markings recorded on the CCTV footage. The officer accepted that these discrepancies would affect the calculations that he made with respect to the speed of the vehicle.

The officer also conceded that when he calculated the speed of the appellant’s vehicle on the night, from the speed of the police vehicle that he drove along the route travelled by the appellant’s vehicle, there was a margin of error of three kilometres per hour.

The officer also conceded that the accuracy of speed calculations for speed under 100 kilometres per hour was plus or minus two kilometres per hour. The overall effect of which was a margin of error of at least five kilometres per hour. The officer conceded that the effect upon his calculations of the margins of error was that where he calculated speeds of 40 and 45 kilometres per hour, the actual speed of the appellant’s vehicle could have been 35 to 40 kilometres per hour or less.

Leading Senior Constable Smorhun also agreed in cross examination that the speed of the vehicle was indicative of “modest acceleration” and that the noise of the vehicle that he identified as indicative of acceleration was not indicative of “heavy or rapid acceleration”. He agreed that the vehicle could have accelerated at a much quicker rate than he calculated it to have increased in speed and that by the time the vehicle came to brake it was capable of having reached speeds “close” to a hundred kilometres per hour. He also agreed that his initial calculation that the vehicle was travelling at 63 kilometres per hour at the point of braking could have been as low as 51.5 kilometres per hour.

In light of the concessions made by the prosecution expert it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was driving 63 kilometres per hour when the brakes were applied after Ms Jordan fell from the vehicle.

To take an example of the effect of Leading Senior Constable Smorhun’s evidence on the calculation of the vehicle’s speed, applying the margin of error he conceded, or put another way, making the assumption “in favour of the accused”, reduced the speed of the vehicle from 42.5 kilometres per hour as it passed through the view of the CCTV camera, to 37.5 kilometres per hour or less.

The speed of the vehicle was a significant feature of the prosecution case because of the absence of other features of the appellant’s driving which supported an inference as to his intention to dislodge Ms Jordan (for the offence of manslaughter) or his advertence to the probability necessary to attribute to him (for the offence of murder) for example swerving or otherwise driving erratically. The prosecution case did not rely at all on the appellant applying the brakes of the vehicle as the act demonstrating an intention to dislodge Ms Jordan from the bonnet or as an act reflective of reckless indifference.

The closing submission by the prosecutor that there was no “material” difference between the vehicle travelling at 45 kilometres per hour and travelling at 63 kilometres per hour glossed over the significance of speed to the prosecution case. The significance of the speed of the vehicle required careful consideration to determine what the evidence could establish with respect to the speed of the vehicle and further, what the speed of the vehicle revealed, if anything, about the appellant’s state of mind. In the circumstances of this case the “painful detail” as to what the evidence demonstrated in relation to speed was critical to an assessment of the state of mind of the appellant and to proof of reckless indifference.

The evidence with respect to the speed of the vehicle also fell to be assessed alongside the CCTV footage which captured the appellant driving the vehicle. The CCTV footage, whilst too poor in quality to allow any unequivocal conclusion as to Ms Jordan’s position on the vehicle as the Chief Justice observed, nonetheless gave an indication of the speed at which the vehicle was travelling. In the CCTV footage the vehicle can be observed travelling at a pace that was not crawling along or very slow. Nor could it be observed to be travelling “fast”.

The manner of driving could also be observed in the CCTV footage. The vehicle maintained a straight course for the period it could be observed in the field of vision immediately in front of the CCTV camera along Alfred Hill Drive. There was nothing remarkable or erratic about the manner of driving. Any sounds made by the vehicle’s engine fell to be assessed alongside the evidence with respect to the speed and what could be observed on the CCTV footage as to the manner of driving. To the extent that the CCTV footage captured the vehicle turning left onto Alfred Hill Drive it did not demonstrate a dramatic escalation in the speed of the vehicle or in the manner of driving such that it appeared uncontrolled, erratic or more intense as to the risk it presented. This was the case for the entire period that the vehicle could be observed on the CCTV footage.

Thirdly, as the prosecutor did in his closing address to the jury, the Director described the position of Ms Jordan on the bonnet of the vehicle as “precarious”. It is important to recall what the evidence established. Ms X described Ms Jordan’s position on the bonnet as her sitting crossed legged on it and indicated that she was holding onto the “lip” of the bonnet, just below the windscreen wipers. It was a position, on Ms X’s version, that Ms Jordan was able to maintain while the appellant “inched” the vehicle toward Ms X up Coutts Place, reversed it back down to Ms Jordan’s house and drove it back up Coutts Place “at speed” until the vehicle turned left onto Alfred Hill Drive. Ms Jordan fell from the bonnet of the vehicle some 200 metres after the vehicle made the turn on Alfred Hill Drive. It was not a position that could be characterised as a “safe” one on a moving vehicle, but it was a position that Ms Jordan was able to maintain for a period while the vehicle was moving including, on the prosecution case, as it turned a corner.

Relatedly, the Director contended that “[a]s a matter common sense, a person on the bonnet of a moving vehicle presents a high risk of probable death”. The appellant pointed out that for the appellant to be aware of the probability of death “it must be the case that driving with the deceased on the bonnet at a speed between 35 and 40 km/hr would in probability result in the death of the deceased. (That is, for the appellant to be aware that something is probable, it must in fact be probable)”.

Whether the act presented a “high” risk of probable death or a risk of probable death is a matter that seems to me to be dependent on the circumstances in which it occurred. That probability is to be distinguished from a characterisation of the act as one which carried inherent risk. The risk involved may not always include death. By reference to the nature, extent and mechanism of the injury suffered by Ms Jordan, Professor Duflou excluded the possibility that the appellant’s vehicle was “stationary or moving at most one to two kilometres an hour” explaining that “skull fracturing was more severe than expected from a fall from a stationary vehicle”. The available inference being that the speed of a vehicle when a person was travelling on the outside of it was a factor which could affect the severity of harm that might be suffered.

There was evidence about the make and model of the vehicle the appellant was driving and there were photographs of the vehicle before the jury. There was some evidence about the capacity for crime scene investigator Trebilcock, who was 163 centimetres tall, to reach parts of the sports bar when standing on the ground. CSI Trebilcock gave evidence about the dimensions of the vehicle.

Professor Duflou’s evidence was that Ms Jordan suffered a “severe head injury as a result of falling backwards with an impact point of the back of the head”. He explained this kind of injury is referred to as a “contrecoup head injury” and can be caused by a fall “from one’s own height”. Professor Duflou characterised Ms Jordan’s head injury as an “accelerated” injury and said that a fall which was “accelerated” in some way could be expected to cause “more severe injury”. He explained that in a fall from “a good … height, you tend not to get contrecoup head injury. It appears to be that rotational movement backwards that is the important one.” The effect of his evidence was that acceleration could cause the “rotational movement backwards”. Professor Duflou said that a fall from a “moving” vehicle involved “additional forces” because the fall is “faster” and “probably at a high position that [sic] just standing… at ground level and when you add those together… you get greater forces. There’s greater acceleration, probably technically deceleration at the time of impact and you get more severe injury”.

Without objection the prosecutor then put several ‘scenarios’ to Professor Duflou which involved Ms Jordan falling from various points on the vehicle while it was moving “at some speed” and “at a reasonable speed”. It is in this context that Professor Duflou expressed the view that Ms Jordan’s injury was inconsistent with a fall from a vehicle that was moving only 1 or 2 kilometres per hour. Professor Duflou was then asked whether any one of the other scenarios which did involve acceleration were “more or less likely” to cause the injury such as the one Ms Jordan suffered. He responded, “I don’t know. In all cases you could certainly get that amount of injury”.

Despite the references in his evidence to height and speed as factors that could influence the nature and the extent of an injury, Professor Duflou was not asked to consider the probability of fatal injury by reference to the actual height of the bonnet of the appellant’s vehicle (which the evidence demonstrated was 97 centimetres from the ground) and the speed of the vehicle upon which the prosecution relied.

There was no other evidence adduced by the prosecution as to the factors which might influence the risk or severity of harm that might arise when a person falls from the bonnet or any other position on a vehicle while it is moving.

There being a probability, “high” or otherwise, of death in the circumstances was a matter to be proved on the evidence. A probability of death could not be said to be present on every occasion a person is present on the bonnet or elsewhere on the outside of a moving vehicle. The presence of slightly built Ms Jordon on the bonnet of the utility vehicle and the fact that it was moving did not evidence a probability or a “high” probability of death, nor the appellant’s advertence to it.

Fourthly, the conflict between the appellant and Ms Jordan was undoubtedly part of the circumstances in which the appellant drove the vehicle with Ms Jordan on the bonnet. But the appellant’s desire to leave the scene, having “inched” up, reversed down and driven back up Coutts Place, could not be conflated with a realisation that in driving with Ms Jordan on the bonnet, the result would probably be her death. The fact of the appellant’s frustration and anger at Ms Jordan’s attempt to thwart his departure was no substitute for the specific state of mind that the prosecution was required to establish.

It is important to recall that the appellant’s anger was described at different points of the conflict. The Director highlighted that Ms X said the appellant pushed Ms Jordan’s head into a bed and dragged her down the hallway. This conduct occurred, Ms X said, at around 2:00am when the appellant and Ms Jordan were arguing over the appellant’s shirt and the appellant “dragged her down the hallway, like, by, like him holding the shirt and her holding the shirt”. After this interaction the appellant left the residence and Ms Jordan and Ms X went to bed.

Ms X said that the appellant returned to the residence at 4:00am and the conflict between he and Ms Jordan recommenced and he attempted to again leave. Ms X said she told Ms Jordan to get off the vehicle and the appellant to “calm down”. In response the appellant got out of the vehicle and “went down the street”. Ms X said she followed the appellant because Ms Jordan told her to “chase him”. Ms X said she asked the appellant if he was going to just leave his vehicle and he responded “yeah”. Ms X said she “ran back up” and Ms Jordan “dived” in the window of the vehicle to find her vape. It was at this point Ms X said that the appellant dragged Ms Jordan out of the vehicle, got into it and began to drive while she and Ms Jodan were both on the bonnet.

The point to make is that the appellant’s anger and the conduct reflecting it, varied over the hours of the conflict. The conduct in pushing Ms Jordan on the bed and dragging her down the hallway as they each pulled on the same shirt occurred hours prior to the driving with her on the bonnet of his vehicle. On Ms X’s version immediately prior to getting into his vehicle the appellant had determined to leave the scene without it, until Ms Jordan instructed Ms X to chase after him. The interaction at 2:00am, after which the appellant departed, could not substantially inform his state of mind on the mental element necessary for the prosecution to establish when he drove the vehicle with Ms Jordan on the bonnet hours later.

It was one thing for the appellant to drive with Ms Jordan on the bonnet, angry at her conduct and her refusal to get off the bonnet, it was another thing for him to drive intending to dislodge her. Neither his anger nor that intention alone fulfilled the necessary mental element for murder based on reckless indifference. The “slow” (on Ms X’s version) inching up and then reversing back before stopping reflected some desire to provide opportunity for Ms Jordan to get off the bonnet. The acceleration back up Coutts Place and movement around the corner onto Alfred Hill Drive, given the speed the evidence revealed the vehicle achieved as it moved through the CCTV footage, was not a dramatic or aggressive escalation of the appellant’s driving, bearing in mind the evidence as to the speed the vehicle could have achieved over that distance. The Director submitted that the appellant’s anger culminated in his acceleration up Coutts Place and the only inference from that conduct was a realisation of the probable consequences and a preparedness to nonetheless “ignore the consequences in order to leave the area”.

The Director’s submission demonstrated the risk of substituting the appellant’s anger with the state of mind for murder in the circumstances of this case. The consequence of his intention to dislodge Ms Jordan from the vehicle was the same tragic consequence of knowing that her death would probably result if he continued to drive. Whilst the outcome of the conduct was the same, it was necessary to distinguish the appellant’s state of mind. A preparedness to “ignore” the consequence because of anger did not necessarily, or only, admit of a realisation of probable death. Consistent with that observation the prosecutor, in summarising for the jury the factors relied upon in support of reckless indifference, did not draw upon or even refer to the anger of the appellant. The appellant’s anger was invoked by the prosecutor in his closing address only as a factor relevant to proof of the appellant’s intention with respect to the alternative offence of manslaughter.

Fourthly, the appellant’s conduct in the immediate aftermath of Ms Jordan falling from the vehicle in my view was at odds with a state of mind where he had just engaged in an act, knowing that it would probably cause her death.

The expressions, tone and reaction of the appellant, captured in part by the CCTV footage, were not compatible with him having already realised that the probable result of his driving with Ms Jordan on the bonnet was her death. That the appellant immediately stopped the vehicle upon realising that Ms Jordan had fallen from it and attended to her, was difficult to reconcile with an actual realisation on his part, that as a result of his driving such an event would probably occur and a determination by him to go ahead nonetheless. The surprise that can be heard in the appellant’s tone and his immediate response, was contrary to him having just brought about the very outcome that he knew was probable.

Finally, the versions given by the appellant as I have already recorded did not exclude a hypothesis consistent with innocence: cf Baden-Clay at [56]. In rejecting the appellant’s version on the critical question of Ms Jordan’s presence on the bonnet, there remained a hypothesis consistent with innocence that had to be excluded. In my view, it was not. It was not a hypothesis that was fanciful, impossible or merely theoretical.

On the whole of the evidence that was accepted by the jury, in my opinion, the reasonable inference that when the appellant drove the vehicle with Ms Jordan on the bonnet, he did not know or realise that her death was probable, was not excluded. It follows that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt with respect to the offence of murder.

I would allow the appeal, set aside the verdict of guilty of murder and the sentence imposed by Baker J on 7 February 2024, order a verdict of not guilty of murder and reserve the question of whether another verdict should be entered.