O'Connell v DPP

Separately, the parties addressed a question raised at my initiative as to whether s 297 of the Crimes Act precludes the making of any further order, including an order under s 37O(1)(e) for a new trial. If that is the effect of the section, the appellant will have an outright acquittal regardless of any order that might otherwise be available under the Supreme Court Act. Accordingly, it is appropriate to consider the effect of s 297 first.

The last topic dealt with in Part 12 is the topic of alternative verdicts and an accused person’s liability to prosecution or conviction for other offences both during and after the trial. Those topics are addressed in ss 296 to 299 of Part 12.

Section 296 addresses the possibility of alternative verdicts as it may arise during the trial (“If, on the trial of a person for an offence, it appears that the facts in evidence amount in law to another offence…”). The section makes provision for the accused in such a case to be convicted of one or other offence but not both. In such a case, the judge may either take a verdict on the offence arraigned, in which case there is protection against future double jeopardy (“and in that case shall not be liable to be prosecuted for the second-mentioned offence on the same facts”) or discharge the jury from giving a verdict on the arraigned offence, in which case the judge may “direct the person to be indicted for the second-mentioned offence”. I note in passing that in this century it might be considered unusual, to say the least, for a trial judge to discharge the jury and “direct the person to be indicted” for a different offence. Operating as it necessarily must as a direction to the Director of Public Prosecutions, such an order may be seen as offensive to the recognition that “it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences”: Magaming v The Queen [2013] HCA 40; 252 CLR 381 at [20].

Section 298 similarly applies “on the trial of a person for an offence” and permits the jury to acquit the accused of the offence charged and find them guilty instead of an attempt to commit an offence. Section 299 also speaks to the time of the trial (“if a person is on trial for an offence against this Act…”). That section protects an accused against multiple alternative verdicts.

Section 297 is confined to the period after trial (“no person tried for an offence … shall be liable”). In other words, the section is concerned with persons who have been tried for an offence. However, like s 296, its clear purpose is to protect the accused from double jeopardy in respect of the events of their trial.

The critical question, then, is the meaning of the words “tried for an offence” in the phrase “no person tried for an offence”. On the appellant’s submission, that phrase is to be construed narrowly, referring to a trial on a single occasion and not extending to the events of any appeal arising from that trial. The alternative interpretation is that it refers to the point at which the trial process is complete, which is to say the point at which, in the language of estoppel, the matter has been determined against the Crown and so cannot be relitigated. That point is not reached until the appeal process is complete.

The Director relied in this context on the observations of Gummow and Hayne JJ in Island Maritime v Filipowski [2006] HCA 30; 226 CLR 328 at [43] (footnote omitted): The plea of autrefois acquit “is the species of estoppel by which the Crown is precluded from reasserting the guilt of the accused when that question has previously been determined against it”. It is a plea that prevents the relitigation of matters already determined in favour of the accused. Like the plea of autrefois convict, the plea of autrefois acquit prevents inconsistent decisions, serves to maintain the acceptance of orders and other solemn acts of the courts as incontrovertibly correct, and avoids the injustice occasioned by the relitigation of what has already been determined.

In the circumstances of the present case, an order for a new trial confined to the offence of manslaughter would not call into question an earlier acquittal, as it did in Filipowski. As explained by the High Court in AJS v The Queen [2007] HCA 27; 235 CLR 505, no question of double jeopardy arises in respect of a statutory alternative offence where no verdict has been taken on that offence (for example, because there was a verdict of guilty on the more serious offence or, as in Quinn v R (1952) 53 SR (NSW) 21, the jury was hung on the lesser offence). The Director noted that this is a reflection of the understanding that a statutory alternative, where relied upon by the prosecution and left to the jury by the trial judge, is taken to form part of the original indictment. Had there been an express alternative count of manslaughter, there could be no question as to this Court’s authority to order a new trial on that count. The position is no different for the fact that the alternative arises because the statute, rather than the indictment, says so. Of course, the position would be different had manslaughter not been left to the jury, for in that event the acquittal entered by this Court on the primary count would have fully discharged the indictment.

The Director made the further point that, if the Court were to construe s 297 so as to preclude the making of any order beyond the entry of a verdict of not guilty of the count on the indictment, that would subvert the purpose of s 49, which makes provision for alternative verdicts for numerous offences. I agree, as submitted by the Director, that this construction would lead to a manifestly unreasonable result, which is to be avoided: s 138(c) of the Legislation Act 2001 (ACT).

For those reasons, I would hold that s 297 does not preclude the making of either an order for the entry of a verdict of guilty of manslaughter or an order for a new trial for the offence of manslaughter in the circumstances of this appeal.

The High Court accepted the appellant’s submission. The Court held at [4]: The charge of incest preferred against the appellant, having been prosecuted at trial and found by the Court of Appeal not to be sustainable, should be finally determined. The conclusion reached by the Court of Appeal required that that charge be determined by entry of judgment and verdict of acquittal.

That is the course we took in the present case in making the orders entered on 27 June 2025, which included an order that a verdict of not guilty of murder be entered. The final determination of a conviction appeal is an important step because, in some cases, the acquittal will inform the evidence that can be adduced in any further trial on an alternative count.

Consistently with that analysis, I note that, in R v Hillier [2007] HCA 13; 228 CLR 618 (discussed for a different purpose below), a case in which an appeal against a conviction for murder was allowed and the conviction and sentence set aside, the plurality commented at [11]: “No order was made directing entry of a verdict of acquittal, although it would follow from the reasons given by the majority of the Court of Appeal that such an order should have been made.”

Returning to the decision of the High Court in AJS, the Court explained at [5] why the entry of a verdict of acquittal by an appellate court for the offence on the indictment would not give rise to a plea of autrefois acquit on the alternative count in that case: Directing the entry of judgment and verdict of acquittal would not engage principles of estoppel or preclusion that fall for consideration where there is a double prosecution of an accused, either in the one proceeding or in successive proceedings. A new trial of the appellant, limited to a charge of committing an indecent act, would not be a second or subsequent prosecution. It would be the continuation of so much of the original prosecution as remained alive after the Court of Appeal's determination of the appeal.

In reaching that conclusion, the High Court considered the decision in Murrell and held that the course taken in that case should not be followed in the circumstances before the High Court, adding at [21]: Whether there may be said to be considerations peculiar to the law of homicide which would support the particular conclusions reached in Murrell was not examined in this appeal and need not be decided.

Notwithstanding that qualification, I consider that the reasoning of the High Court in AJS is of equal application in the present case. However, it is necessary to consider the effect of a decision of the NSW Court of Criminal Appeal in which a contrary conclusion was reached: Crane v R [2024] NSWCCA 112. Crane was an appeal against a conviction for murder. The only ground of appeal the Court had to consider was that the verdict was unreasonable, and unable to be supported, having regard to the evidence. The Court unanimously upheld that ground. The relevance of the decision for present purposes is the discussion of the appropriate orders in that event.

The main judgment was written by Dhanji J. Having found that the unreasonable verdict ground was made out, his Honour turned to consider what orders were to be made in light of his findings: at [144]-[149]. It had not been suggested that the Court should exercise its power under s 7(2) of the Criminal Appeal Act 1912 (NSW) to substitute a verdict of manslaughter: at [144].

After noting at [145] that the discussion that followed did “not purport to be complete” and was without the benefit of argument, Dhanji J proceeded to consider the effect of the decision in Murrell, saying at [146]: There is authority in this State that, in the absence of an order for a new trial it would not be open to the Director to bring a further trial against the applicant for manslaughter: see R v Murrell (2001) 123 A Crim R 54; [2001] NSWCCA 179 at [35] – [43]; and s 163 of Criminal Procedure Act 1986 (NSW) (in force as s 125 at the time R v Murrell was decided). Further, based on that authority, it would be necessary to order a new trial generally (not acquitting the applicant on the charge of murder), leaving it to the Director to determine if some alternative to murder should be prosecuted.

What follows in the judgment is, with respect, an astute and helpful analysis of the “difficult questions” that arise with respect to the effect of s 163 of the Criminal Procedure Act 1986 (NSW) (the NSW equivalent of s 297), the decision of the High Court in AJS and the decision of the NSW Court of Criminal Appeal in Murrell. However, it was unnecessary to resolve those difficulties in Crane because, as Dhanji J held, the only alternatives available to the jury in that case were guilty of murder or outright acquittal: at [148]. Accordingly, Dhanji J settled on a course his Honour considered to be “consistent with AJS v The Queen and not inconsistent with R v Murrell”, namely, that the Court should “simply enter an acquittal on the charge of murder”. His Honour at [150] proposed orders granting leave to appeal, allowing the appeal, quashing the verdict of guilty of murder and entering “a verdict of acquittal on that charge”.

It is correct, as very fairly noted in the Director’s submissions, that the other two members of the Court agreed. As the orders proposed by Dhanji J at [150] are the orders recorded on the coversheet of the judgment, their agreement must be taken to extend to the orders proposed by his Honour, although neither said so in terms. Cavanagh J stated at [9] that he had carried out his own independent assessment of the record of the trial and had come to the same conclusion as Dhanji J. His Honour concluded at [23], “I would thus also allow the appeal and order that the applicant be acquitted.” Harrison CJ at CL expressed his satisfaction at [1] “that the appeal should be allowed, and that the applicant’s conviction should be quashed” but made no reference to the order for acquittal.

Importantly, neither Harrison CJ at CL nor Cavanagh J joined in Dhanji J’s discussion of whether Murrell is binding as to the effect of s 163. And, as already noted, Dhanji J himself did not purport to determine that issue. His Honour noted that, in AJS, the High Court held that a verdict of acquittal entered on appeal would not be a bar to a further trial of the appellant for an alternative offence that would have been available on the original indictment. However, he evidently considered that, in NSW, the decision in Murrell is binding as to the effect of s 163. His Honour stated at [147]: There is reason to doubt that this aspect of AJS v The Queen is binding in the present case. The High Court in AJS v The Queen (at [20]-[21]) referred to R v Murrell, disapproving the reasoning but at least leaving open the possibility that particular considerations may apply in cases of homicide. More significantly, there was no suggestion that any Victorian equivalent to s 163 of the Criminal Procedure Act applied in AJS v The Queen. While the reasoning in AJS v The Queen is, with respect, compelling, the issue raised by R v Murrell is the effect of s 163 of the Criminal Procedure Act. For completeness, I note that in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, an appeal from this Court, it was accepted that it was open to this Court to enter an acquittal for an offence and order a retrial limited to a lesser alternative for which the appellant may have been found guilty at trial. The contrary was not, however, argued and there was no reference to s 163 of the Criminal Procedure Act. Sio v The Queen is not, therefore, binding authority overruling the conclusion in R v Murrell that an acquittal will bar a further trial of a lesser offence: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]; CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at 11 [13]; Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [56].

Those remarks treat the decision in Murrell as binding in NSW on the issue of the effect of s 163. The appellant accordingly submitted that this Court should follow the decision in Murrell in determining the effect of s 297 unless convinced that it is plainly wrong, citing the decision of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135].

I do not accept that those remarks in Say-Dee apply to a statement of the kind made by Wood CJ at CL in Murrell at [42]. With unfeigned respect to Dhanji J, it was not necessary for his Honour to treat Murrell as binding authority on the proper interpretation of s 163, having regard to the qualified language of the conclusion reached by Wood CJ at CL in that case (“[i]t would be prudent to avoid any residual question of autrefois acquit arising”). It is apparent that the Court was taking what was described as the proper course (not to enter a verdict of acquittal or to order a new trial on manslaughter) because it was the “prudent” approach, as opposed to the only correct approach as a matter of legal principle.

A further complication in Murrell was the fact that there was more than one alternative offence (manslaughter and accessory after the fact to murder). While the significance of that complication was not expressly articulated, it appears to have contributed to the Court’s reluctance to order a new trial for manslaughter.

For that reason, in my respectful opinion, Dhanji J mistook the precedential value of the decision in Murrell when he referred to Sio v The Queen [2016] HCA 32; 259 CLR 47, (a decision of the High Court) as not amounting to “binding authority overruling the conclusion in R v Murrell that an acquittal will bar a further trial of a lesser offence”. His Honour’s analysis of that issue assumes that s 163 was overlooked in Sio due to inadvertence. However, the absence of any reference to that section may alternatively reflect an assumption that a provision of the kind found in s 163 (in NSW) and s 297 (in the Territory) does not speak to the appellate court in an appeal against conviction from the very trial in which the verdict of guilty of the more serious offence was entered. The doctrine of autrefois acquit is not engaged until the appeal process arising from that trial is complete; it is not enlivened in respect of an alternative count that was left to the jury by the order of an appellate court entering a verdict of not guilty on the primary count where no verdict was taken on an alternative count.

Although the High Court in AJS did not determine the effect of s 163, the Court’s reasoning at [5] and [19] supports this analysis. In my view, s 297 does not speak to the Court of Appeal in an appeal against conviction from the very proceedings in which the alternative verdict was available and left to the jury. Where, as here, the statutory alternative was left to the jury but, for whatever reason, no verdict was returned, the entry of a verdict of not guilty on the count on the indictment cannot support a plea of autrefois acquit on the alternative count.

For those reasons, I would hold that the fact that a verdict of not guilty of murder has already been entered by this Court in the present appeal does not preclude the making of either of the orders proposed by the Director of Public Prosecutions.

There are slight differences in wording. Whereas s 28 of the Federal Court of Australia Act provided “the Court may, in the exercise of its appellate jurisdiction set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered” (my emphasis), s 37O(1) confers power “to set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered” (my emphasis). In 2006, the language of s 37O was changed to refer to the thing to be set aside as the “order” rather than the “judgment”, but nothing turns on that. The significant point is that, when appellate jurisdiction was first conferred on the ACT Supreme Court, the incidents of appeals to the Court of Appeal were modelled on those then available to the Federal Court. That explains why the Territory did not initially have what the High Court has described as the “common form” appeal provision that most of the States have: MDP v The King [2025] HCA 24 at [1] (Gageler CJ); [9] (Gordon and Steward JJ); [77] (Gleeson, Jagot and Beech-Jones JJ).

That changed in 2008, when s 22 of the Court Legislation Amendment Act 2008 (ACT) inserted new sections 37O(1A) and (1B). The explanatory statement for that amendment explained that those sections reflected the High Court’s decision in R v Hillier, in which the High Court had commented on Part 2A of the Supreme Court Act, noting that it “said nothing about the principles governing the exercise of the powers given by the Act [in relation to criminal appeals jurisdiction]”. The explanatory statement continued, “[d]espite the lack of explicit provision, the High Court determined that the criminal appeals jurisdiction in the ACT is as broad as that of equivalent courts of appeal in other jurisdictions and interpreted Part 2A accordingly. This amendment brings the appeals jurisdiction in line with that of all other jurisdictions”.

Incidentally, the Federal Court of Australia Act was amended the following year to introduce the common form appeal provision for the Federal Court exercising its appellate criminal jurisdiction: Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (Cth). However, there do not appear to have been any conviction appeals brought under that provision yet.

The common form appeal provision adopted by the ACT did not include a provision of the kind found in s 7(2) of the Criminal Appeal Act 1912 (NSW), which provides: Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

However, that was in circumstances where the ACT appeal provisions already included s 37O(1)(d), which confers power to enter “another verdict” (modelled on the provision of the Federal Court of Australia Act that conferred power to enter “another appropriate verdict”).

In light of that history, it should not be concluded that the Legislative Assembly in the Territory did not intend this Court to have power to enter a verdict of guilty for some other offence of which the jury could on the indictment have found the appellant guilty. The appellant submitted that there is no textual foundation for the Court to import into s 37O a power equivalent to that expressly set out in s 7(2) of the New South Wales legislation. In my opinion, the textual foundation is the use of the phrase “another verdict”. Unlike appeals, alternative verdicts are not creatures of statute. The power to leave an alternative verdict for a lesser offence to a jury in an appropriate case has long been recognised at common law. A comprehensive discussion of the history of and principles applicable to alternative verdicts at common law may be found in the decision of the NSW Court of Criminal Appeal in R v Cameron [1983] 2 NSWLR 66: applied by Hunt J in Winner v R (1989) 39 A Crim R 180 at 183. In the latter decision, Roden J (incidentally, the judge who had presided over the trial from which the appeal in Cameron was brought) described it as trite law “that, quite apart from express statutory provisions, a jury may properly return a verdict of not guilty of the offence charged but guilty of a lesser offence”.

Understood in that historical context, a construction of the statute that acknowledges the appellate court’s power to enter a verdict of guilty for a lesser alternative where it can be concluded that the jury must have been satisfied beyond reasonable doubt as to the elements of the lesser offence is unsurprising.

For those reasons, subject to what follows, I am satisfied that s 37O(1)(d) does authorise this Court to enter a verdict of guilty of manslaughter where a verdict of murder has been set aside.

As submitted by the Director of Public Prosecutions, the more difficult question is the conditions on which such a power might be exercised, particularly in a criminal appeal from a jury verdict. The Director noted that there is nothing in s 37O or Part 2A generally which governs or outlines the conditions on which the power can or should be exercised: cf s 7(2) of the Criminal Appeal Act 1912 (NSW) and s 277(1)(c) of the Criminal Procedure Act 2009 (Vic). She further noted that there has been no judicial consideration as to the circumstances in which this Court would exercise the power.

The Director’s submission in answer to that question is that the circumstances in which the power should be exercised should be no less onerous than the standard discussed and applied by the High Court in Spies v The Queen [2000] HCA 43; 201 CLR 603 at [50] (concerning s 7(2) of the Criminal Appeal Act 1912 (NSW). As I understood the submission, two points were made. First, although s 37O(1)(d) does not expressly contour the power to enter “another verdict”, the Court should not construe the section as authorising that course on any less stringent test than that the appellate court must be satisfied that the jury must have been satisfied of the elements of the alternative offence. This will be straightforward where, for example, the successful ground of appeal touches on a particular element, leaving the remaining elements untouched.

Secondly, I understood the Director to be making the point that the satisfaction of that test (that the jury must have been satisfied) must be determined having regard to the nature of the ground of appeal that has succeeded. That emerges from what the plurality in Spies said at [50]: Moreover, s 7(2) only operates where the jury have been satisfied of those facts on evidence properly admitted, and where the jury have been properly directed as to the facts which are to be used as the basis of entering a conviction in respect of the other offence. If any of the facts of which the jury must have been satisfied is the product of evidence wrongly admitted, or has or may have been influenced by a misdirection, non-direction or other error on the part of the trial judge, s 7(2) cannot operate. The words "must have been satisfied of facts" mean that the jury must have been properly satisfied of facts proved by admissible evidence in accordance with proper directions.

In the absence of any authority to determine this question, I agree that is the appropriate approach for the reasons suggested by the Director. Any less stringent approach would subvert the constitutional role of the jury as the tribunal of fact and undermine the proper delineation of this Court’s appellate role. This Court should not enter a verdict for an alternative offence unless satisfied that the jury must have been satisfied of the elements of that offence. In reaching that conclusion, the Court must have regard to the ground on which the appeal succeeded and the implications of the success of that ground. The Court is not to substitute its own assessment of the evidence but rather determine what findings of the jury must necessarily be left standing following the determination of the appeal.

These directions were in accordance with the written ‘elements document’ provided to the jury by the trial judge. This Court concluded that there was no deficiency in the directions given to the jury.

By virtue of their verdict on the murder charge, the jury must have determined the question of the appellant’s intention with respect to manslaughter “adversely” to him.

The Court noted that which was pointed out in R v Maxwell (Unreported, NSW Court of Criminal Appeal, 23 December 1998 per Spigelman CJ, Sperling and Hidden JJ) that s 7(2) applies only “where the jury verdict necessary implies that they were satisfied of facts constituting” the other offence.

In Maxwell the Court of Appeal declined to enter a verdict of guilty on the alternative offence of manslaughter after setting aside a guilty verdict entered for murder. The verdict was the result of a judge alone trial in which the Court of Appeal determined that a miscarriage of justice had occurred. A ground of appeal which asserted that the verdict was unreasonable was not established in the context that the alternative offence of manslaughter arose only because the accused sought to rely upon diminished responsibility. The Court of Appeal determined that they could not be satisfied that “the tribunal of fact, properly instructed, was bound to find the defence of diminished responsibility was made out on the evidence” noting that the burden of proof with respect to that issue was on the appellant and accordingly, declined to enter a verdict of guilty to manslaughter.

Nonetheless, the Court observed the “sense” in the entering of a verdict of guilty for an alternative offence where that result “implements the legal consequence of the jury’s determination” (citing R v Caslin [1961] 1 All ER 246; 1 WLR 59 and Browne, Moorehouse & Blewitt (1987) 30 A Crim R 278) and concluded that “the position is different where there is evidence to support the offence charged and there has been no determination of that [other] charge on the merits according to law”. The Court noted that it was “difficult to imagine that other discretionary considerations could be of such sufficient weight to justify substitution of a verdict for a lesser charge in such circumstances”.

Accordingly, the need to determine the issue of diminished responsibility in Maxwell did not permit a conclusion that the verdict set aside for murder implied satisfaction with respect to the facts which would have constituted the alternative offence.

In Spies the High Court endorsed the analysis in Maxwell and further observed: If there is any outstanding issue, whether of fact or opinion, in respect of the “other offence” which is not covered by “the facts” found to the point of certitude, the Court of Appeal cannot exercise the power to convict which is conferred by s 7(2). The function of the Court of Criminal Appeal is not to find facts, but to give legal effect to the findings of fact that the jury have expressly made or which are necessarily involved in the verdict of guilty which they have returned.

In this matter, there was no “outstanding issue” of fact or opinion with respect to manslaughter not covered by the facts found implicit in the jury verdict for murder. The entry by this Court of a verdict of guilty for manslaughter in our view “implements the legal consequence of the jury’s determination” and does not suffer the same unreasonableness as the verdict for murder.

The analysis as to the unreasonableness of the verdict for murder in at [270]-[345] in O’Connell must be understood in the context of a consideration of the element of reckless indifference for murder. The analysis of the evidence with respect to its capacity to support an inference that in determining to drive his vehicle with Ms Jordan on the bonnet the appellant knew that her death was probable, does not inescapably demonstrate that a conclusion that the appellant had the necessary intention for manslaughter would similarly be unreasonable. As was observed at [303] there was a “fine but necessary distinction” between the alternative offences in the circumstances of this case. That the evidence was “largely the same” for each offence should not obscure that which the offence of murder required the jury to conclude beyond reasonable doubt with respect to the appellant’s state of mind.

As we have already observed, the intention necessary for manslaughter did not require proof that the appellant intended a more specific outcome by his driving than Ms Jordan being dislodged from the bonnet of the vehicle and colliding with the roadway. It can be accepted that for each offence the nature and manner of the appellant’s driving was evidence from which inferences could be drawn as to his state of mind. The appellant identified considerations from the analysis of the evidence by Taylor J in O’Connell said to demonstrate that the entry of a verdict of guilty for manslaughter would similarly be unreasonable, to which we now turn.

First, the speed at which the appellant drove the vehicle was an important aspect 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” (O’Connell at [323]).

The speed of the vehicle was a significant consideration as to the appellant’s knowledge of the probability of death in circumstances where the expert medical evidence demonstrated that speed was a factor which influenced that probability. Taylor J concluded that the effect of Dr Duflou’s evidence was “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” (at [329]) and further at [333]: 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.

A doubt about the capacity for the speed of the vehicle to have supported proof of knowledge of the probability of death, does not undermine the capacity for it to have supported a finding that in driving the speed he did, the appellant intended to dislodge Ms Jordan. That the appellant drove the vehicle below the speed limit and did not accelerate to the full extent of the vehicle’s capability, did not preclude him having the intention to dislodge Ms Jordan from the bonnet of the vehicle. Those matters were significant in coming to consider his knowledge that in continuing to drive in that manner Ms Jordan would probably die by falling from the vehicle because of the capacity for speed to influence the probability of death, but they did not exclude the intention necessary for manslaughter in the same way.

Added to which, of course, was the very act of continuing to drive the vehicle whilst Ms Jordan remained on the bonnet of the vehicle until she fell from it. This was a relevant factor notwithstanding the absence of swerving or a “dramatic or aggressive escalation of the appellant’s driving”. The distance driven by the appellant with Ms Jordan on the bonnet, whilst not a feature of the manner of his driving as such, was nonetheless a factor regardless of speed, relevant to the appellant’s intention in circumstances where he did not stop the vehicle until after Ms Jordan was dislodged from it.

Secondly, we accepted that the appellant’s apparent anger proximate to his driving of the vehicle with Ms Jordan on the bonnet was a matter the jury were entitled to consider. Taylor J observed at [340]: 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 observation that the appellant’s anger in the lead up to driving the vehicle “was not a substitute for the specific state of mind that the prosecution was required to establish” must be read as an observation with respect to proof of reckless indifference. Whilst it was concluded at [339] that “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”, the circumstance proximate to the appellant’s driving, which included the appellant attempting to leave the scene and Ms Jordan determining to remain on the bonnet of the vehicle, reasonably informed an assessment of his state of mind when he continued to drive. It was a circumstance from which his intention in doing so could be inferred. The prosecutor invited the jury to consider the appellant’s anger in the context of the alternative offence of manslaughter, and he was entitled to do so.

Relatedly, the “slow” driving engaged in by the appellant inching up and reversing back down Coutts Place did provide opportunity for Ms Jordan to voluntarily remove herself from the vehicle. The decision by the appellant to drive back up Coutts Place and beyond, Ms Jordan having remained on the bonnet of the vehicle despite that opportunity, was not conclusive with respect to reckless indifference but it was nonetheless a circumstance relevant to the appellant’s intention when he determined to continue to drive the vehicle.

Thirdly, the appellant’s immediate response to Ms Jordan falling from the vehicle was considered inconsistent with the state of mind necessary for murder. Taylor J observed at [343] “[t]he 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”. This observation does not operate to undermine proof of intention for manslaughter in the same way. The appellant’s immediate reaction in the face of Ms Jordan’s apparently devastating injuries was equivocal with respect to the intention necessary for manslaughter where that intention did not require the appellant to have turned his mind to bringing about any harm or injury to her.

Finally, the admission. Taylor J concluded at [312] that the admission “I shouldn’t have done it” was “neutral with respect to proof of the state of mind necessary to establish reckless indifference for murder” and “did not admit of any matter that might distinguish between the two different mental elements”. This finding was consistent with the reliance by the prosecution on the admission. It was only relied on by the prosecution as a matter relevant to prove the presence of Ms Jordan on the bonnet of the vehicle when she fell from it. The prosecutor submitted to the jury that the admission assisted their resolution of the factual contest about Ms Jordan’s presence on the bonnet and suggested that “[t]he only 'it' that comment could logically be referring to is the conduct alleged by the prosecution, deliberating driving down the road with Ms Jordan on the bonnet”.

In view of how it was relied upon by the prosecution, the conclusion that the admission neither advanced nor undermined the prosecution case with respect to the appellant’s state of mind for murder applies equally to the alternative offence of manslaughter. A conclusion that the admission was neutral with respect to the state of mind necessary for the prosecution to establish beyond reasonable doubt for either offence is not the equivalent of it contributing to the unreasonableness of a verdict of guilty. Conclusion

The jury verdict for murder was found to be unreasonable after an assessment of the “overall quality of the evidence” with respect to proof of reckless indifference. That conclusion and a review of the whole of the evidence does not exclude that it was open to the jury to be satisfied that the appellant possessed the intention necessary for manslaughter. The finding we consider that the jury necessarily made by virtue of their verdict for murder, that the appellant drove the vehicle intending that Ms Jordan would be dislodged from it and collide with the roadway, is not rendered unreasonable because of the conclusion reached with respect to the verdict for murder.

To be clear, our previous holding did not impugn the jury’s finding that the appellant drove the vehicle with Ms Jordan on the bonnet, in the circumstances established by the evidence identified at [270]. Our conclusion that the verdict for murder was unreasonable or could not be supported by the evidence was only with respect to proof of his knowledge that in continuing to drive her death was probable. Proof of something less than that fell short of what was necessary to establish the offence of murder. Proof of an intention to dislodge Ms Jordan from the vehicle in the circumstances of this case did not prove knowledge that her death was probable. Our conclusion on the verdict for murder does not impugn the finding that the appellant possessed the intention to dislodge Ms Jordan from the vehicle.

We have concluded that the jury must have been satisfied of the facts constituting manslaughter and that the entry by this Court of a verdict of guilty to manslaughter would not give effect to an unreasonable verdict. The appellant has not asserted any forensic disadvantage arising from the unreasonable verdict that might influence whether this Court should enter a verdict of guilty for the alternative offence: Spies at [621]. We do not consider that there are any other discretionary considerations which would warrant this Court declining to give effect to the legal consequences of the jury’s determination.

The entry by this Court of a verdict of guilty for manslaughter in our view, gives “legal effect to the findings of fact that the jury have expressly made or which are necessarily involved in the verdict of guilty which they have returned” and is the order we would make.

The parties agreed that should this Court determine to enter a verdict of guilty for the offence of manslaughter, the appropriate course was for the appellant to be re-sentenced by Baker J. We would make orders consistent with that agreed position. Orders:

We propose the following orders: (1) A verdict of guilty be entered on the alternative offence of manslaughter. (2) Remit the proceedings to Baker J for re-sentence.