Judgment
1HOEBEN JA:
Nature of proceedings
The appellants appeal against their conviction for murder, pursuant to
ss 5(1)(a) and (b) of the Criminal Appeal Act 1912.
2The appellants were jointly tried in July 2009 in the Supreme Court before Justice Latham and a jury. The indictment charged each of the appellants with the murder of Christian Minotte on 17 April 2006 at Mount Pritchard. The trial was heard over 13 court days. After deliberating for approximately three and a half days, the jury returned guilty verdicts on 30 July 2009 in relation to both appellants.
3The appellants were sentenced to a total term of imprisonment of 18 years with a non-parole period of 13 years. In the case of Mr Penza, his sentence commenced on 27 July 2007 with the non-parole period expiring 26 July 2020, and the balance of term expiring 26 July 2025. In the case of Mr Di Maria, his sentence commenced on 24 August 2007 with the non-parole period expiring 23 August 2020 and the balance of term expiring 23 August 2025. Mr Di Maria was also sentenced in respect of three counts of "goods in custody" under s 257C(1)(a) Crimes Act 1900, two counts of "use instrument" under s 300(2) Crimes Act 1900 and one count of "knowingly make a false statement" under s 307B Crimes Act 1900. The sentences imposed for those offences were wholly concurrent with the sentences for murder and have now expired.
4The trial was conducted by the Crown on the basis that the appellants went to the home of the deceased, armed with a firearm, with the intention of stealing drugs and/or money concealed in a wall cavity in the laundry of his home. The deceased was a successful drug dealer who was known by Mr Penza, his step-son, to keep cash and drugs in his home. At some stage, the deceased confronted Mr Di Maria and a struggle took place, culminating in the discharge of the firearm into the deceased's head. On the Crown case, the evidence did not disclose which of the appellants was directly responsible for the fatal shooting.
5The Crown put its case in two alternative ways, relying on the doctrines of extended joint criminal enterprise and constructive murder (the "felony murder rule"). The Crown prosecutor's opening address included the following explanation of the ways in which the prosecution would seek to establish the appellants' liability for murder:
"It is the Crown case that Frank Penza and Joshua Di Maria entered a joint criminal enterprise to commit an armed robbery, or aggravated break and enter depending on whether they needed to break into the house at number 24 Oliphant Street or whether the deceased would let them into the house and it was their intention to steal items from 24 Oliphant Street, including the contents of the wall cavity, and any other items of value. It is the Crown case that both accused would have contemplated the likelihood that the deceased would resist any attempt to rob him including their knowledge that the deceased was a drug dealer and their knowledge, particularly on the part of Frank Penza, which he could have communicated easily to Joshua Di Maria, that the deceased had firearms in his home." (T.22.12)
"The basis on which the Crown seeks to make both of them liable for murder is as follows: The Crown relies principally on the doctrine of joint criminal enterprise, common purpose to establish the liability of both the accused for the offence of murder ... It is the Crown case that both accused entered a joint criminal enterprise to commit an armed robbery in company or specially aggravated break and enter in company and that each of the accused contemplated the possibility in carrying out this enterprise that one or other would discharge the firearm as indeed did happen with intent to kill or cause grievous bodily harm to the deceased. In particular, because they knew they were robbing a man who was a drug dealer, who had guns at the property, who knew who they were and where it would take considerable control over the deceased in order to break open and steal the contents of that wall cavity." (T.23.8)
"On a final legal basis ... the Crown also relies on the doctrine of constructive murder. In this particular state, persons who become involved in offences that involve the maximum penalty of 25 years and in particular in this case, robbery with a dangerous weapon carries 25 years ... can also be found guilty of murder on this constructive murder basis." (T.23.23)
6It should be noted that the appellants were ultimately sentenced on that latter basis of liability, i.e. felony murder, which was accepted by the Crown as the appropriate finding to make on the evidence (R v Penza and Di Maria [2010] NSWSC] 16 at [2]).
7The Crown accepted that it had to establish to the criminal standard of proof, that the appellants attended the deceased's home while at least one of them, to the knowledge of the other, was armed with a firearm. Proof of this circumstance was a necessary aspect of the extended joint criminal enterprise case, as it founded the alleged contemplated possibility that one of the accused would discharge the firearm with intent to kill or cause grievous bodily harm to the deceased. That circumstance also constituted an element of both of the two foundational offences relied on to establish felony murder, and in this sense was a necessary aspect of the alternative felony murder case. The offences of aggravated armed robbery in company and specially aggravated break enter and steal, contrary to
s97(2) and ss 105A and 112(2) of the Crimes Act 1900 respectively, both have as an element, that the accused was armed with a "dangerous weapon", which is defined to include a firearm (s 4 Crimes Act 1900).
8The Crown relied on a number of pieces of circumstantial evidence to prove that the appellants went to the deceased's home armed with a firearm. In written and oral directions given to the jury, the trial judge summarised this circumstantial case and set out six areas of the evidence. Those six areas were the subject of detailed challenge in the first ground of appeal.
9The respective defence cases did not dispute that the appellants were present at the deceased's home when the fatal shot was fired. Nor was it disputed that at a point before the shooting, the appellants formed an intention to steal from the deceased. To this end, the appellants accepted that they entered the laundry area of the deceased's premises and demolished a wall cavity in their search for drugs and money. However, it was the appellants' case that neither of them was armed when they attended the deceased's home.
10The appellants relied upon the following grounds of appeal.
Ground of Appeal 1: The verdict is unreasonable and cannot be supported having regard to the evidence.
Ground of Appeal 2: The learned trial judge erred by failing to direct the jury that, in respect of felony murder, the act causing the death had to be voluntary.
Ground of Appeal 3: The learned trial judge erred by failing to leave manslaughter by unlawful and dangerous act for the jury's consideration.
Ground of Appeal 4(a): The evidence relied on by the Crown to establish consciousness of guilt on the part of the appellants was inadmissible.
Ground of Appeal 4(b): The learned trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning in relation to the appellants.
FACTUAL BACKGROUND AND CONDUCT OF TRIAL
The Crown Case
11At about 7.30am on the morning of Monday, 17 April 2006 two heroin addicts, Danielle Thorn and Jeffrey Mills, drove to the deceased's home at 24 Oliphant Street, Mount Pritchard intending to buy heroin. They approached the front door, which was unlocked and open, which was unusual. Mr Mills stayed at the door while Ms Thorn went inside. She called out and walked through the house to the back observing that the back door was "wide open". She looked down the stairs and saw the deceased face down, partly on the grass and partly on the path.
12She called out to Mr Mills and he, having walked through the house, saw the deceased lying at the bottom of the stairs on his side. Ms Thorn rang 000 and followed instructions which she was given to attempt to revive the deceased by using CPR. She rolled the deceased over and observed that he had a rock in his hand, which rolled out and left his hand in a clawed position. Mr Mills remained at the top of the stairs.
13Ambulance officers arrived and told them to wait for the police, who arrived a short time later. Sergeant Young, one of the attending police officers, noted that Mr Mills seemed affected by drugs and observed an apparently fresh "track" mark on his arm. Mr Mills had been there about 8.30pm the night before and had bought, as usual, a "gram" of heroin for which he generally paid $300 cash.
14Ms Thorn's boyfriend was the deceased's nephew, Daniel, who was also a heroin user. Ms Thorn often purchased heroin and cocaine from the deceased and sometimes she asked him for drugs on credit. She had last seen him at midnight. Generally she knocked on the door and called out to him and sometimes she rang in advance. She called out because "sometimes he wouldn't answer until he knew who it was".
15Ms Thorn was aware that the deceased slept in the bathroom because he was "paranoid ... he would sleep right behind the door so he could keep the door closed and the toilet's there so he could flush his drugs down the toilet". The deceased told her that someone had gone to his house and threatened him. He also thought the police were watching him. In her opinion, he had been more paranoid in the past two months.
16The ambulance officers were told on arrival that the deceased had apparently fallen down the stairs. One of them, Ms Symonds, noted that the deceased's right hand was stiff and in a claw-like position, giving the impression of having held something. She saw a brick near the hand.
Dr Little - forensic pathologist
17Until Dr Little conducted a preliminary examination at the scene, it was thought that the deceased had died from a fall down the stairs at the back of his home. Dr Little noted a gunshot wound to his head and a large number of less serious injuries to his face, arms and legs.
18The autopsy showed that the deceased had died from a gunshot wound. The projectile entered the deceased's left parietal scalp, 15cms back from the midline of the forehead and 3cms down from the top of the head. The entry hole was 4mm in diameter and the edge was abraded/grazed, as is common in such wounds. The projectile - which Dr Little presumed was lead - from its appearance and the fact that it broke up inside the head - passed through the brain and into the skull on the opposite (right) side. She considered it to be a "distant range" shot, as there was no evidence of the markings which are expected in either "contact wounds or intermediate range wounds". The projectile passed through the left scalp and across to the right and slightly downward and was retrieved from the right side of the skull by Dr Little.
19In the course of the autopsy, Dr Little found a plastic bag containing seven coloured balloons lodged in his oesophagus, just above the stomach, which were later shown to be cocaine. She opined that the bag had not been there long "no more than a few minutes", because otherwise it would have progressed further into the digestive tract.
20Dr Little also found and identified about 51 separate abrasions/grazes on the body of the deceased, virtually all of which were fresh and "non specific" but were not consistent with having been punched or dragged. She said that there were too many to be explained by one or two falls. She gave detailed evidence of the particular grazes. In particular, there was a graze on his forehead which was consistent with him having been hit with a blunt object, or having fallen against a blunt object. Dr Little said:
"Potentially he could have not died straight away ... he was more likely to have stumbled and moved in a very uncoordinated fashion ... it's quite possible that he could have been shot under the house and still made his own way out to where he was found." (T.300)
21Dr Little was unable to be of assistance as to where the deceased may have been immediately before the shot was fired. She said:
"It would depend on where the person shooting him was standing. For example, although it's a downward angle on the gunshot wound, if the person was in an elevated position in comparison to him, they could shoot him while he was standing, and similarly, he could have been crouching, sitting, lying." (T.300-T301)
22In answer to a jury question as to likely time of death, Dr Little provided a very qualified estimate which was 1.30am.
23The following question was asked and reply made by Dr Little:
"Q. Please advise the technical definition of intermediate and long distant shot in terms of metres? Are you able to pass any comment in relation to that question?
A. I can make some comments. It may be better made by a ballistics expert, but I have done some reading around it. Basically the only way you can really determine the exact distances for any one gun is to test fire it. It depends very much on the gun. It's different for handguns versus rifles. It's different depending on the type of ammunition, particularly the type of powder with the ammunition. That will give a different distance that you get. The spray pattern that causes the tattooing that gives you the intermediate range one but on average for a .22 calibre weapon, which is what I understand this weapon was, depending whether it's a handgun or a rifle, it could be anything from half a metre to a metre. That would be where the intermediate range ended and the distant range started." (T.556)
DNA and blood evidence
24Michelle Franco, a DNA expert, gave evidence. This placed both of the appellants at the home of the deceased at the relevant time. Until the trial, the evidence from Mr Penza in his ERISPs was that he was last at the deceased's place "three weeks, probably a bit less" and that he had last been in the laundry "not lately, but probably before I moved out, returning all his tools".
Ballistics
25The firearm, which discharged the fatal shot, was not found at the premises, nor was it ever recovered. Evidence was given by Detective Sergeant O'Hagen, a ballistics expert. Upstairs in the kitchen, which opened off the rear stairs and veranda, she located a discharged bullet, a "concave gutter" mark on the back door and a bullet mark on the wall above the stove. She noted a trajectory from the gutter mark on the back door to the wall above the stove from where the bullet bounced off to the floor. She could not say how close the gun was to the back door when it was fired, nor determine the calibre of the bullet because of the impact damage it had suffered. There was no evidence as to when the gutter mark damage to the back door occurred or how old was the bullet mark above the stove.
26Police located two spent cartridge cases on the laundry floor. Each was .22 long/long rifle calibre. They were identified as coming from two different manufacturers, Winchester and PMC. Although it could be established that they had been discharged from the same firearm, the type of firearm could not be determined.
27There were fragments of a .22 calibre Winchester bullet lodged in the skull of the deceased. Because the firearm used was not recovered, it was not possible to compare that bullet with the spent cartridges in the laundry in order to determine if they were from the same weapon. Similarly, it was not possible to determine if the damaged bullet found on the kitchen floor came from either of the spent cartridges on the laundry floor. A comparison of the bullet found in the deceased's skull with the bullet found on the kitchen floor was inconclusive in that it could not be determined that they were fired from the same weapon.
28Detective Sergeant O'Hagan test fired the weapons seized from the deceased's premises and found them all in working order. She itemised the substantial number of weapons found in the deceased's laundry cache. That list included two target pistols, which had been recorded as having been stolen, together with a third firearm from a registered gun owner. The third firearm stolen (which was not one of the weapons found on the premises) was a Pardini model SP calibre 22 LR pistol, which Detective Sergeant O'Hagan said was designed to fire .22 long rifle calibre ammunition.
29Detective Sergeant O'Hagan from her observations at the post mortem noted that there was a rim of blackening around the wound but no sooting or strippling. Given the absence of sooting and strippling, her opinion was that the shot to the deceased's head was not fired from "close" distance, but without knowing the weapon that was used, the conclusion was that it was not "hard contact". It was impossible to say whether the shot was fired from more than 5, 10, 20 or even 30 cms away.
Searches
30Police officers searching the house located a number of items which confirmed the evidence of others. $4,500 was hidden in a cavity between the doorframe and the wall of the wardrobe in bedroom one. Members of the deceased's family referred to the deceased hiding money around the house. The bathroom was found to contain a mattress, milk crates and buckets of water. Other witnesses referred to the deceased being "paranoid" and sleeping in the bathroom.
31Senior Constable Keighran searched the basement of the deceased's house which was converted into a laundry. There was a brick cavity wall beside the doorway. The cavity seemed to have been broken open and there was debris on the ground. The weapons previously referred to were found in that cavity.
Evidence from neighbours around 24 Oliphant Street
32Glen Pitt could see into the backyard of 24 Oliphant Street from his front door. On the night of Easter Sunday, 16 April 2006, into the early hours of Monday he was awake. At about 4.20am he heard "voices like calling out to someone" but could not make out the words - the speakers seemed to be slurring their words. The shouting went on for about five minutes. He agreed that it could have been two voices.
33On looking out his door, he saw a male on the back balcony of 26 Oliphant Street:
"It sounded like he was wanting somebody to come out of the house ... yelling. Then I heard what sounded like somebody wrestling, then a bang on the fence, and then I heard three gunshots ... I thought [the noise] was coming from the younger guy's place ... it sounded like somebody was either going into [the Colorbond fence] or going over it ... [He then] heard three bangs ... it sounded like a cap gun ... Next I sort of took a peek out of my [bedroom] window ... I seen a figure standing on the back step which looked like he had a white shirt on ... He [was] on the back step of number 24, the older guy's place ... [at the top] of those stairs or the top of those stairs ... he looked a bit woggy ... European ... he stood there for probably a minute and then walked down the stairs and walked up the side of the house [between 24 and 26] and left." (T.337-339)
34The time lapse between the wrestling sound, the bang on the fence and the three shots was about a minute, maybe just over. By "wrestling" he meant "the sounds of the slapping of bare feet on the concrete". Mr Pitt thought that the time between the first shot and the next two was only a split second ... five, maybe three seconds" (T.348). He was, however, certain that he heard the noise from the fence before the shot.
35Donna Gaal lived about 150m down the hill from 24 Oliphant Street. On Easter Sunday night she was awoken by male voices yelling, one of which said "Come back here". She then heard shots, which she first thought were crackers [but a bit louder].
"Q. Are you sure it was two loud bangs?
A. Yes.
Q. How close were they?
A. Very close.
Q. Seconds?
A. Yes.
Q. Minutes?
A. No. Seconds. Bang, bang." (T.254)
The shots came from the same direction as the voices. She thought that happened at about 2-2.25am. However, she also got up at about 4.15am, and may have been confused about which of those times involved the shots. At the time of giving evidence, she thought it was 2.15am.
36Wade Hughes lived in the street behind the houses at 24 and 26 Oliphant Street and could see part of both houses. He knew Frank Penza, who lived at 26, whom he had spoken to, and his father, who lived at 24. On occasions he had seen Frank "hop over the little fence" out the front, which was between the houses. Mr Hughes was aware of a period of time during which the deceased was not living at 24. He saw the deceased out the front of 24 at about 8pm on Easter Sunday. At around 1.30am he heard "a couple of sounds ... like crackers", not "very loud". At about 2.15am he heard a loud car going down Miller Place.
37Robert Hervey lived across from 26 Oliphant Street. At about 3.30 - 4am on Easter Monday morning he heard "a clunking sound". He got up and looked out his window at Oliphant Street, and saw a person in a red hoodie walking with a limp towards 24.
38David Fausett lived near 24 Oliphant Street and could see it from his place. On Easter Monday morning between 1.30 and 3am, he heard two gunshots. Later at about 6.55am that morning, he heard what sounded like a woman crying in the backyard of 24.
Evidence from the deceased's clients
39Maria Kapathiou bought cocaine from the deceased on Easter Sunday morning at Cabramatta Railway Station. She could not always get to his house, although she had been there as a friend, as well as a customer. She recalled an occasion about six months before he died when having dropped her off at Bexley, after he had supplied her, he was "jumped" by three Lebanese guys. He told her to run away and they then went for him. He told her that they would get nothing from him, except fictitious phone numbers and maybe $1000 cash.
40Amie Pate had bought heroin from the deceased between midnight and 2am on the day he died. She was regularly buying from him about five times a day. In her experience, he always packaged his deals in coloured balloons. She had knocked and called out her name because "he wouldn't open the door unless he knew who you were ... or if you didn't say your name clearly". It was the same for Danielle Thorn. He made up the deals himself and would not open the door while he was doing that.
41She saw on that occasion that he had "a big bag of deals ... thousands of dollars worth of deals" with him. She also knew that he "always had a lot of money ... thick wads of cash" because he would not deal in less than $100 buys. She said:
"A. He didn't like people coming there in the early hours, so he would try to get you to, you know, get what you've got to get until the morning.
Q. But was it uncommon for yourself and other girls that you knew to go there between midnight and 5am?
A. No that wasn't uncommon ... [but] he didn't like it ... but he was up and ready for it." (T.483)
The deceased told her he was paranoid and had been sleeping in the bathroom on and off for weeks.
42Richard Leonard was both a customer and a friend of the deceased. He bought cocaine once or twice a week and had gone to the house 20 to 30 times. The deceased asked him to look after the house on the night of Easter Sunday while he was out for dinner with his girlfriend and Mr Leonard had agreed to do so. The arrangement was simply to be at the house. He was not to sell drugs for the deceased. The arrangement was cancelled when the girlfriend became ill.
43Sheree Thomas gave a statement to police, but did not give evidence at trial. She said that she used to buy heroin from the deceased from about October 2005 and at least four times a day every week since then. She said that both she and Danielle Thorn bought $600 worth of heroin daily from him. She said that most of his customers were women, since he did not trust men. He had told her that he wanted a break from selling drugs because he "had enough of people stuffing him around, owing him money, people ringing him and coming to his house late at night". He was agitated, angry and prone to lose his temper.
44She had arranged to be dropped at the deceased's home after 1.30am on Easter Monday. She knocked on the front door and said her name. He opened it immediately. She knew he would not open the door without the person identifying themselves. She saw him carrying about 40 deals in a plastic bag. She bought a half weight of heroin for $135. She arranged to return in the morning and he told her not to bring anyone with her.
Evidence of the deceased's family members and associates
45Maria Minotte, the wife of the deceased, said that she had adopted Frank Penza and his sisters when each was a child and they had regarded the deceased as their father, calling him "Papa". In early 2006 she was living next door to the deceased at 26 Oliphant Street with her son Patrick and Mr Penza. She went overseas in early March, but stayed in contact with the deceased with weekly calls.
46She said that throughout their marriage the deceased never kept his money in banks and regularly hid money in whatever house he was then living. He hid money in the rangehood at 24 Oliphant Street and told her about how he had made a cavity in the wall in the laundry. On about eight or nine occasions she exchanged amounts of Australian dollars (just less than $10,000) for American dollars as requested by the deceased. He was always careful to prevent anyone taking his money.
47At the time she left for overseas, the relationship between the deceased and Mr Penza had deteriorated. The deceased wanted him to "grow up", be more responsible by paying his rent and the electricity bill, by not going into his home without permission and to generally act like a 25 year old.
48She had known Mr Di Maria for years, as a friend of her children and thus of the family. He was invited to Christmas dinner in 2005.
49The deceased had been threatened three times (at the end of January, mid-February and the end of March) by some "Lebanese guys" who wanted his money. He called them "terrorists" - they wore balaclavas. She said that these Lebanese persons had come to his house on three occasions and were demanding money. He was sleeping in his bathroom with plywood against the door because he was frightened. She said he was frightened, upset and furious about it.
50She was aware that he had firearms. She knew that he had a sawnoff gun. She said "I just saw the wooden stick cut off - one barrel, single barrel on it I think it was, it looked pretty old. I've seen the gun". She estimated the length of the sawnoff firearm to be 30cms. She said that she had given this weapon to him before she went overseas. She said "it was just under the bed". She said that he had other rifles and "always loved firearms".
51Phillip Minotte was a son of the deceased. He regarded Frank Penza as a brother. He had known him and Mr Di Maria since childhood. He said that the deceased was making the false cavity in the laundry before he went overseas in January 2006 when Mr Penza was living next door. The deceased told him he was going to keep guns there and he had two or three guns (a rifle, pistol and a shotgun) at the time Phillip left Australia. Patrick (his brother) and Mr Penza knew of the cavity. Phillip was aware of the deceased hiding money in the wardrobe inside the house. The deceased complained to Phillip that he had "been jumped by some Lebbos at Bexley" and that he had been threatened by "Lebbos". His father always locked the doors and "you had to knock on the door to get in".
52Daniel Minotte was the nephew of the deceased. He was the boyfriend of Danielle Thorn and a heroin addict. He bought heroin from the deceased a few times each day, usually a "gram" for $300. Most of the time Danielle actually conducted the transactions. He knew that the deceased would only supply people he knew.
53Frances Minotte (who was not a relative of the deceased) was in virtually daily contact with the deceased and spoke to him by phone on Easter Sunday at about 6pm. She said that the deceased usually had a lot of cash with him, was security conscious and was always locking the door when in the house. She had never seen the front door left unlocked. The back door was open. She was aware that he sold heroin and presumed that he kept it in the laundry.
54Patrick Minotte was a son of the deceased who grew up with Mr Penza and regarded him as a brother. He lived at 26 Oliphant Street with Mr Penza for about six months. He knew his father had built an extra wall on the left as one entered the laundry as a "secret hiding spot" at a time when Mr Penza was living next door. The cavity was "covered in" and it was necessary to break it to remove what had been walled up in the cavity. There was no other way to get at it. In Patrick's absence the deceased "probably took a few things ... some guns, money and jewellery" and hid them in the cavity. Patrick thought that his father was storing "a minimum of $US250,000" in the cavity. He said that his father would have broken into the cavity to get things out and then remade it. However, generally he would wait until he had built up some money before attacking the false wall.
55He agreed that when he and Mr Penza were living at 26 Oliphant Street, they would go onto their back balcony and yell out to his father. When he came out, they would jump over the fence into number 24.
56Frank Amil was a friend of the Minotte family and had known Mr Penza since he was about three. On Tuesday, 18 April 2006 he went to the McLaughlin home where he saw Mr Penza. He asked what had happened to the deceased. Mr Penza said "I think it might have been competition". Mr Amil asked Mr Penza about the keys to the deceased's house saying that he had to lock it up. Mr Penza said that he did have the keys but had lost them.
57Mr Penza told Mr Amil that the police had asked him directly whether he had killed his father. Mr Penza said that on the night of the murder, he had been at the McLaughlin's home drinking and left at 1am and went to Patrick's (being 26 Oliphant Street). He denied going there with anyone else.
58Karen Heath had been in a relationship with the deceased in 2004, although they did not live together. In about February 2005 the deceased commenced making the laundry more secure, including doing brick work because that was where he kept his cash. She also knew that he hid money under the mattress and in the rangehood. On occasions when she was at the deceased's house, people telephoned and turned up late at night. The deceased would then go to the laundry for these people. While she was only aware after his death that he had firearms, he had told her that he would not run from anything he would "always stand up to anybody".
Evidence from friends of the appellants
59Troy McLaughlin was a friend of Mr Penza. Mr Penza was at his home drinking when Troy arrived on the afternoon of Easter Sunday. Troy left to buy alcohol and later Mr Di Maria arrived. He too was drinking. They (together with Trent Martin and Adam McLaughlin) were in a granny flat at the house watching TV. Troy went to bed at about 10.30pm. Messrs Penza and Di Maria were still drinking.
60Adam McLaughlin gave evidence to similar effect. He said that Mr Penza had been drinking bourbon and coke and that Mr Di Maria turned up with a bottle of Remy Martin.
61Christine McLaughlin confirmed that first Mr Penza and then Mr Di Maria turned up at her home. They watched football and drank. Later they were with her and her husband inside the house and were noisy. She said that Mr Penza was "pretty pissed" and that she offered to drive them, which they declined. They left together at around 11pm. Trent Martin confirmed that evidence.
62Toni Green was Mr Di Maria's girlfriend at the time. She said that she had breakfast with Mr Di Maria on Easter Monday at about 8.30 - 9am. She did not notice any different mood or injuries on him. When they returned to his home, they found Mr Penza on the lounge just waking up. He had no shirt on. She did not notice any injuries or change from his usual mood.
63At about 9pm on Easter Tuesday, Mr Di Maria came to Subway where she worked and said that he was leaving for Malaysia immediately and that she should join him there as soon as she could. In answer to her question why he was going that night, he asked "If I loved him and if I trusted him". He gave her the keys to his Toyota Cressida which she left at her family home.
64She said that in the preceding weeks they had discussed going to Malaysia "within the next couple of weeks" but no date had been set. She left Australia for Malaysia on 21 April 2006 and travelled with him to Bangkok, Rome, Milan and Sicily. The last three destinations were not mentioned in the original discussion. Mr Di Maria paid for everything using cash which he had. A good deal of that cash was in US dollars. When they were in Bangkok for the second time, she insisted that Mr Di Maria pay $3000 - $4000 for liposuction for her. He also had some surgery on his nose.
65She returned to Australia alone about three months later after an argument, but Mr Di Maria paid for the ticket. He did not return to Australia until substantially later. Although they remained in contact, they later broke up. At some stage in the relationship, Mr Di Maria told her that he had received a payment of about $30,000 - $40,000 as a result of an injury.
66Yasmin Nada was Mr Penza's girlfriend from November 2005 and she lived with him, Patrick Minotte and Patrick's girlfriend at 26 Oliphant Street from December 2005 until moving out on 30 March 2006. She had met the deceased and understood him to be Mr Penza's stepfather.
67Having spent Easter Sunday morning with Mr Penza, she dropped him at the McLaughlin's place around 2pm and next saw him at her parents' place at about 10 - 11 o'clock the following morning. She and Mr Penza had spoken on the phone around 8am. Mr Penza told her that after drinking at the McLaughlin's house, he had gone to the home of Mr Di Maria and had more drinks. Mr Di Maria dropped him at her parents and she did not notice any scratches on him. Later on the Monday afternoon, Mr Penza was rung by Mrs McLaughlin and told that the deceased was dead. She said that he was "too upset to talk about anything".
68Wayne Clarke, a friend of Mr Penza, was visited at his home by him the day after the deceased was killed. Mr Penza asked if he had heard about "Papa". Mr Clarke noticed that Mr Penza had "scratch marks ... on his arms and a couple on his neck". Mr Penza said that he had got them from fixing Phil's car. When Mr Clarke saw Mr Penza at the wake for the deceased, the latter said that he had been at his girlfriend's house the night the deceased was killed and that "he was upset and that he said that he was getting set up for Chris Minotte's murder".
Other police/investigation evidence
69Ms Chan gave evidence concerning gunshot residue. She said that such residue was volatile and recovery/identification of it depended on various factors. The absence of it did not necessarily mean that the person or item had not been associated with a gun being fired. She examined the vehicle used by Mr Penza and Mr Di Maria to go to and from the deceased's home and found no such residue.
70Mr Malone was the officer-in-charge. He produced immigration records showing Mr Di Maria's departure from Australia on 18 April 2006 and the fact that there was no record of his returning using that name. It was common ground that Mr Di Maria had returned to Australia under another name. He produced identity documents in the name of "Michael Shane Watkins" which Mr Di Maria had obtained. Mr Di Maria was arrested on 24 August 2007, having been initially pulled over by other police officers. Mr Di Maria ran from the car and was pursued. Mr Malone conducted both records of interview with Mr Penza.
Records of interview of Franco Penza
71Mr Penza agreed to recorded interviews with the investigating police on 18 April 2006 and on 6 June 2006. He made no admissions as to his involvement in the death of the deceased.
72Relevant parts of the first ERISP were: The deceased was selling heroin and cocaine from 24 Oliphant Street to at least 20 people per day, and also delivering it. Mr Penza said that he did not know where the drugs were kept and when asked to guess, suggested "his room or kitchen". He said that cash would "probably" be kept in the house but did not know where. The last time he was at the deceased's house was "three weeks probably a bit less" and that he had last spoken to him "probably four days ago" as he was driving past.
73Mr Penza saw cuts on the deceased's arm a couple of months ago, i.e. during the last two or three months. The deceased said that "some Lebbos tried to get him ... it was due to a client that he had that set him up or something". He said the "Lebbos" were trying to get him and rob him. Mr Penza said that he used to jump the fence between his house and that of the deceased.
74He said that on the Sunday night he was drinking at the McLaughlin's house and got "pretty pissed". He said that he left after his "cousin Mr Di Maria" brought a bottle of Remy Martin. He then went up to Mr Di Maria's house in Smithfield, kept drinking and crashed out there waking up at about 10 - 11am. He then went to his girlfriend's and then to her mother's house for dinner. After that he received the phone call about the deceased's death.
75Mr Penza could not say when he was last in the laundry area of the deceased's house, but "not lately but probably before I moved out, returning all his tools". He said that the weapons he knew of were a machine gun (maybe an M4), a .22, a .32, a few shotguns and a target rifle/pistol. He said that the deceased had ammunition "in a suitcase". Mr Penza specifically denied having anything to do with killing the deceased.
76Mr Penza's second ERISP provided the same information.
77It should be noted that although many witnesses referred to the deceased having significant quantities of drugs at the house, no narcotics or other drugs were located by the police despite a thorough search.
The defence cases
78Mr Di Maria gave sworn evidence in the trial. Until then he had not given any account of the events of 16 - 17 April 2006. The following is a summary of his evidence, both in chief and under cross-examination.
79On Easter Sunday he went to the McLaughlin's house in the evening at about 7pm having collected a bottle of Remy Martin from home. Mr Penza was amongst those present. The persons there continued to drink into the evening. He estimated that he drank half a bottle of the spirits which he had brought mixed with coke. He and Mr Penza left between 9 and 11pm and went to his home about 10 minutes away. They continued to drink and watch TV.
80At about 3.30am (he noted the time from his TV) he and Mr Penza discussed getting cocaine from the deceased. Mr Penza drove Mr Di Maria's car and parked on the deceased's front lawn. They went down the drive to the front door and saw that no lights were on. They knocked on the front door, got no answer and knocked harder for about 5 minutes. In the absence of a response:
"Frank said that he is probably out with one of his girls, and he goes "let's go, let's go help ourselves". He goes, you know, "I know where it is"." (T.574)
81They went next door to 26 Oliphant Street, down the driveway, through the gate and up onto the back veranda. Mr Di Maria called out "Chris, Chris are you there?" Mr Penza called out "Papa, Papa", both using loud voices again for about five minutes. (T.574 - 576)
82Mr Penza then took him to a spot on the common fence and they jumped over into the yard of 24 Oliphant Street. Mr Penza said that the drugs were in the laundry, which was open. They entered and turned on the light. Mr Penza indicated a cavity wall and attempted to put his hand in the gap at the top where the brickwork was broken. Mr Di Maria estimated the size of the gap at 20cm x 5cm. They began to attack the wall with a chisel, then a sledgehammer. After about five minutes, Mr Penza reached in and grabbed a sandwich bag containing cash and put it down his pants.
83Mr Di Maria reached in and pulled the handle off a bag trying to remove it. Mr Penza said "Let's go, let's go" and then Mr Di Maria heard the deceased say "Hey what's going on?" Mr Penza turned the light off and ran to the fence, then got over it. The deceased said "Come or come back, or come back here". The next thing which happened was:
"Chris has come into the laundry and turned the light on. He - says "What are you trying to steal from me" and he has pointed the gun at me, and the gun was in his right hand. I put my hands up. He has pulled the trigger, tried to pull the trigger again, but it seemed to be either jammed or unloaded. So he put it in his left hand, and there was like a bolt action thing, and he has unloaded it and the shell's casing has come out ... I could tell it was a sawnoff, it had a bolt action." (T.581)
84Mr Di Maria then picked up a nearby brick, threw it at the deceased's head, although not as hard as he could. He hit the deceased's forehead. He was afraid of being shot and tackled the deceased around his torso and remaining upright, they struggled out of the laundry. As Mr Di Maria had a fractured finger which had not healed, he could not make a tight fist but he got the gun above the deceased's head - they were both holding it, he on the barrel and the deceased on the stock/handle. Then the deceased fell backwards with Mr Di Maria on him. Mr Di Maria felt a heavy item hitting his head at the back. The gun was still above their heads. (T.581-584)
"He was smashing me in the back of the head with a hard object. Every time he was using an aggressive voice, each time he hit me and I was starting to get dizzy and I couldn't hold back any more, so I got up off his body and grabbed a hold of his arm." (T.587)
They were then on their knees, the barrel was getting
"Closer ... to my person ... I couldn't hold him any longer because I was really dizzy and I felt I was drunk and he was too strong, I couldn't hold him back. The gun was basically pointed at me, so I'm holding him like that, I have let go of the right arm to push the gun back." (T.587)
85The evidence proceeded:
"Q. So you let go with your left arm; is that what you have indicated?
A. Yes.
Q. You have indicated moving your left arm to where your right hand was which was holding the gun?
A. Yes.
Q. You pushed back with both hands?
A. Yeah. I grabbed hold of Chris and pushed him. As I done this Chris - as I was holding the right arm, his body was sort of twisted.
Q. Twisted which way, in towards you?
A. Towards this way, towards me.
Q. So he's gone right into the left part of your body; is that what you mean?
A. Yeah his right to my left, yeah. As we have fallen back I pushed the gun back and it went off.
Q. It went off?
A. Yeah.
Q. Do you know whether you pulled the trigger?
A. I don't know.
Q. To your knowledge were you touching the trigger?
A. I don't know. As I done that in the one motion it went off.
Q. Do you know whether the gun or any part of it hit the ground?
A. No.
Q. When you pushed his arm back how were you feeling in relation to what he was doing?
A. I was really dizzy, I could see like white dots and my ears were ringing from the sound of the gun.
...
Q. When the gun went off was that when he was bending forward and you were on your knees?
A. Yeah that's right.
Q. The gun has gone off and he's fallen back has he?
A. (No answer)
Q. Did you fall with him - you're nodding.
A. Yes.
Q. What did you do?
A. Chris fell we both fell. I grabbed the gun.
Q. You grabbed the gun did you?
A. I tried to snatch it, I snatched it. I got up to run but I stumbled because I was too dizzy so I wasn't in a position to exit the premises.
Q. Why not?
A. Because I was too dizzy and my ears were ringing yeah.
Q. Did you know whether Chris had been shot fatally at that stage?
A. No, I wasn't sure. No, I wasn't sure." (T.588-589)
86The deceased immediately fell to the ground letting go of the gun.
"Q. Did you do anything with the gun?
A. Yes.
Q. What did you do?
A. I reloaded it.
Q. How did you do that?
A. With the mechanism on the side.
Q. You're indicating backwards and forwards?
A. Yeah the same thing Chris done when it, when he had pointed it at me, I done the same thing.
Q. Why did you reload the gun?
A. Because I was scared he was going to come after me and attack me. I wasn't going to shoot him with it. I was just scared and I wanted to go home that's what I wanted to do, go home.
Q. When you reloaded the gun did it discharge? Did you see anything come out of the gun?
A. Shell casing.
Q. Where were you in the laundry when you reloaded the gun?
A. Just inside the doorway.
Q. How long did you stay in the laundry for?
A. One minute, two minutes something like that.
Q. Did you decide to leave?
A. Yeah eventually, yes.
Q. Did you look to see where Chris Minotte was before you left?
A. No, I was in the laundry. I panicked because I didn't see - he didn't come back and I thought that maybe it was possible that he was dead but I wasn't sure and I panicked. My blood was all over the gun, there was blood on the hammer.
Q. Which hammer?
A. The sledgehammer that was sitting there. I didn't know what to do so I was scared." (T.590)
87Mr Di Maria collected the firearm and the hammer and then called out to Mr Penza who did not respond. He left through the side gate and saw that Mr Penza was in the car with the lights on and on the driveway at the front of the deceased's house. He got in the car with the firearm and told Mr Penza to drive away. When the latter asked what happened, he said "I think I shot him". Mr Penza kept asking if the deceased was all right, he was "in shock". They then went to Mr Di Maria's house.
88Later that morning Mr Di Maria disposed of the hammer and the firearm, having ejected the bullet which was left in his car. Between the seats he found the plastic bag with the money in it, which Mr Penza had put down his pants in the laundry. It was mostly US currency (about $US40,000) with some Australian ($AU5,000). He later met up with Toni Green, his girlfriend and then worked on a car. He decided to go immediately to Malaysia being "scared of Phillip Minotte and his family". He had been to Malaysia before in March, shortly after he suffered the displaced fracture to his right forefinger.
89He said that he remained overseas for many months. During that time he was told by a friend that his house and that of Toni Green had been searched by the police and that he was a suspect in the murder of the deceased. He had money sent to him from Australia and obtained a passport in another name (Watkins). He later got a driver's licence, a Medicare card and had utilities connected in that name. He also had made some inquires through a solicitor about handing himself over to the police. He specifically denied going to the deceased's house armed, or with any intention to kill or seriously harm him.
90In cross-examination, he said that he knew the deceased dealt in drugs from his home but that he (Di Maria) mostly bought from Phillip or Patrick Minotte. When buying from 24 Oliphant Street, it was not always the case that someone went down to the laundry. He agreed that the plan was to "grab some drugs out of the wall" at 24 Oliphant Street. When the deceased turned up, Mr Penza was between him and the deceased so that the deceased could not see what was going on, except for the rubble on the ground.
91He said that he had known the deceased for seven or eight years and had no issues with him. Once the deceased put the light on he said "Do you want to steal from me cunt?" then pointed the gun straight at his chest. Mr Di Maria said he was unarmed and had his hands above his head but the deceased pulled the trigger while still pointing it at him. He never told Mr Penza of the circumstances in which the deceased was shot.
92He said that the reason he returned to Australia under another name and not through Sydney was because he was scared of Phillip Minotte and the threats the police officer, Mr Malone, was making "to my mum ... basically saying I'm a murderer. It was just intimidation, I don't know just scared me" (T.670).
"Q. Mr Di Maria, the situation is that prior to you going over to number 24, Frank Penza had told you about there being more than just drugs in that wall cavity hadn't he?
A. No sir.
Q. He told you about the money that you could find in that wall cavity hadn't he?
A. No sir.
Q. And also the guns?
A. No.
Q. That you and Frank Penza had armed yourself prior to going over to that house?
A. No sir.
Q. And that it was one of you, either you or Frank, who fired the shot into the house that rebounded off the kitchen door?
A. No sir.
Q. That anything that Christian Minotte did was an attempt to defend himself from you two who were there to attack and rob him?
A. No sir." (T.674)
93The appellant, Frank Penza, neither gave nor called evidence at trial.
THE APPEAL
Ground 1 - The verdict is unreasonable and cannot be supported having regard to the evidence.
94It was common ground that the Crown was obliged to prove an indispensable intermediate fact, namely that the appellants went to the deceased's home armed with a firearm. This meant that the Crown had to exclude a reasonable possibility that one of the appellants obtained use of the firearm when they were at the deceased's home. In that regard, there was no issue that the deceased kept firearms in the house and that firearms were found in the wall cavity when the premises were searched. The deceased's wife gave evidence of a sawnoff rifle with a similar description to the weapon referred to in Mr Di Maria's evidence.
95The appellants submitted that because of the deficiencies in the Crown case, the verdict ought not be allowed to stand. They submitted that the problems in the Crown case were not of the kind that were capable of resolution by reference to a jury's advantage in seeing and hearing the evidence. They submitted that no part of the case against the appellants relied upon findings of credit to be made, either for or against a particular witness, by the jury. In that regard, the submissions by the appellants largely ignored the evidence of Mr Di Maria on the basis that for the jury to have reached the verdict which it did, it must have substantially rejected that evidence.
96The appellants submitted that the issue was "whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellants" (Knight v R [1992] HCA 56; 175 CLR 495 at [21]).
97It is common ground that the case against the appellants was wholly circumstantial. There was no direct evidence that either of them had a firearm when they went to the deceased's house. It was agreed at trial that "unless the jury can be satisfied beyond reasonable doubt that the accused were armed when they went to the premises, then a verdict of guilty in respect of either of them cannot arise" (T.697.36).
98The appellants accepted that, although by necessity, it was necessary to treat each of the factual matters or circumstances separately, it was the "combination and totality" of those circumstances taken together from which the Court should consider the reasonableness or otherwise of the jury's verdict. The appellants acknowledged that in some cases, no single circumstance alone might sustain a verdict but viewed in totality, the combination of circumstances might allow the drawing of an inference of guilt. The appellants submitted that in this case not only was each of the circumstances of itself weak, but taken together they still allowed for reasonable inferences consistent with innocence. They submitted that taken at its highest, the circumstances in the Crown case could not exclude as a reasonable hypothesis that both appellants went to the deceased's house, but did not go there while armed. Nor could those circumstances exclude the hypothesis that the deceased was shot with the sawnoff rifle which his wife said he possessed at that time.
99The Crown case relied upon six areas of circumstantial evidence. The trial judge summarised that evidence in her written directions to the jury as follows:
"The Crown cannot prove the offence of Murder (either by way of extended joint criminal enterprise or by way of felony murder) unless the Crown has proved beyond reasonable doubt that one of the accused was armed with a firearm to the knowledge of the other, when they went to Mr Minotte's house in the early morning of 17 April 2006.
In the absence of direct evidence that one of the accused was armed, to the knowledge of the other accused, the Crown relies upon the following items of evidence to found that inference:
(a) The existence of the "gutter" mark in the back door, together with the depression left in the kitchen wall, beside the rangehood, and the projectile on the floor of the kitchen.
(b) Knowledge of the accused Penza that Mr Minotte possessed firearms and that he would resort to their use if threatened,
(c) Lies told by the accused Penza to police in both recorded interviews, namely, that he had not been to Mr Minotte's house on 17 April 2006 and that he knew nothing of the circumstances surrounding his death.
(d) Flight by the accused Di Maria in the evening of 18 April 2006.
(e) The adoption of a false name and creation of false identity documents by the accused Di Maria.
(f) Flight by the accused Di Maria when stopped by police on 24 August 2007."
100At trial, the Crown relied heavily on the evidence of the trajectory of the bullet which left marks in the kitchen area. The Crown prosecutor said that this was the most important piece of evidence from which the jury would draw the inference that the appellants arrived at the house armed.
101In order to understand the submissions, it is necessary to say something about the layout of the house. The laundry was located under the house. There were stairs which led from the back veranda to the back yard and from there one could go to the laundry door. From the veranda if one were to go inside the house through the backdoor, one would be walking into the kitchen area. There was no access to the laundry by an internal staircase. The only way of gaining access to the laundry from the kitchen area was by way of the veranda down the stairs to the backyard. Thus the laundry door was some metres away and downstairs from the back door to the house.
102The Crown theory was that one of the appellants had fired a bullet into the house from the back veranda area, that this had caused the marks referred to and that this had occurred during the same incident which ended with the shooting of the deceased. Implicit in that theory was that the person firing from that position, already had a firearm in his possession, which was consistent with a firearm having been brought with him, and not consistent with the firearm having been obtained from the laundry after arrival. Consistent with that theory was the finding of two spent casings which came from the same firearm. The submission was that the firearm having been discharged from a location outside the back door, one of the appellants had then descended the stairs to the laundry and at sometime thereafter had ejected the spent casing and used the firearm to shoot the deceased and had once again ejected a casing. That scenario also explained the evidence of neighbours that they heard two shots.
103There are, however, a number of difficulties with the Crown case. The first is that Detective Summerfield agreed that there had been some manipulation of the back door and kitchen area, in particular moving the door so that it was almost closed, in order to get the marks to line up, to establish the path which the police said this bullet took. It is difficult to understand why the door would have been in that position at the time the shot was fired.
104It is also difficult to understand the circumstances in which a firearm would have been discharged into the kitchen area. Inferentially, the discharge of a firearm in that way would have had to have occurred before the shooting of the deceased. If it were intended to shoot at or warn off the deceased, one would have expected to have found a spent casing outside the back door, either because it had been automatically ejected or if it were a bolt action or lever action weapon, because it had been manually ejected thereby allowing another round into the breech. It seems incongruous that a person who had fired into the kitchen, would then take the firearm down the back stairs into the laundry area without preparing the weapon to fire another round. Yet two spent casings were found in the laundry.
105Alternatively, since the back stairs provided the only direct access from the kitchen to the laundry, one might have expected the person who discharged the firearm into the kitchen to keep those stairs under observation if there were some prospect of the deceased using them to gain access to the laundry.
106There are a number of other difficulties. Detective Sergeant O'Hagen was unable to identify the calibre of the projectile found in the kitchen. She said it was virtually impossible to identify the position from which the bullet was fired. Where the bullet was fired from was heavily dependent on what type of pistol or rifle was used and the type of ammunition. No testing, expert or otherwise, was performed to ascertain the age of the gutter mark on the doorway, or the bullet mark in the wall above the stove. No test was carried out to confirm that the gutter mark had been made by a bullet. The projectile found on the floor of the kitchen, may have been moved from its original position during the investigation because it was not located at an early point in the crime scene investigation. The projectile could not be ballistically linked with the two casings found in the laundry or with the projectile which killed the deceased. Its calibre could not be determined.
107The weapon which fired the fatal shot, remained unidentified. The two spent casings, found in the laundry, could be used in a large number of different firearms, from pistols to rifles and could be used with firearms with different types of action, e.g. automatic, lever or bolt action. Depending on the firearm, the spent cartridges might be expelled automatically by the weapon, require manual ejection such as with a lever or bolt action, or remain in the weapon itself such as with a revolver. It was agreed that the bullet that caused the marks in the kitchen could not have been fired from the laundry.
108It was not possible to say from the expert evidence that the projectile which killed the deceased matched the casings found on the laundry floor. Similarly, it was impossible to conclude that the projectile found on the kitchen floor matched the casings found on the laundry floor. It was not possible to say that there was any match between the projectile found in the kitchen and that which killed the deceased.
109Just as with the projectile in the kitchen, the casings in the laundry may have been moved, since a number of police were in the laundry before the casings were identified. As with the kitchen, the police initially were not aware that there had been a shooting. Moreover, there was no examination of the surrounding houses to see if a bullet may have damaged any of their walls. A shot fired into the air could have gone anywhere and a projectile thus fired would be almost impossible to locate.
110There is another difficulty. If the marks in the kitchen describe a bullet's trajectory and if the bullet that made that mark came from the same weapon which shot the deceased and if the bullet making the trajectory marks was fired on the same night, and if that was during the same incident as the deceased's death, then that scenario is contrary to the evidence of the neighbours. The neighbours all clearly heard more than one shot, in very quick succession. Given the layout of the house, it is simply not possible that a firearm could have been discharged into the kitchen and within a second or two, discharge so as to cause the deceased's fatal wound.
111There was, of course, a scenario readily available which would explain the discharge of a firearm towards the kitchen on an earlier occasion. There was evidence that the deceased had been the subject of violent and threatening standover tactics by "Lebanese guys" who were after his money. According to his wife, they had visited the deceased at his home on at least three occasions and demanded money. On one occasion, his wife observed injuries which were attributed by him to a beating received from these persons. A shot could have been fired into the kitchen by one of these persons on an earlier occasion as a warning or threat. Clearly the deceased was living in a state of fear as evidenced by sleeping in the bathroom with the door blocked.
112There was no evidence that either of the appellants possessed a firearm before the incident. There was no evidence of where the appellants might have obtained a firearm late at night or early in the morning of the day on which the deceased was killed.
113There is a scenario consistent with innocence, which largely fits the available evidence, particularly that of the neighbours and the recent injuries found on the deceased. That scenario involves the appellants going to the deceased's house to acquire drugs, shouting to him so as to indicate who they were and when they received no response, opportunistically deciding to steal drugs and money from him. While doing so, the deceased confronted them and a scuffle ensued between him and one of the appellants leading to the discharge of the firearm and the deceased's death. This is consistent with the partially demolished state of the cavity, i.e. that the appellants were in the process of breaking into the cavity in the laundry when they were confronted by the deceased. It is consistent with the firearm described by the deceased's wife as having been given to him by her, being similar to that described by Mr Di Maria. This weapon could not be found when the premises were searched by the police, although a number of other weapons were discovered.
114A similar scenario consistent with innocence would have the appellants going to the deceased's house to steal drugs and money, but without a firearm. That scenario also largely fits the available evidence.
115The one piece of evidence which does not fit that scenario is the evidence that two shots were heard by the neighbours. It may well have occurred that the deceased fired a shot before the scuffle which led to a further discharge of the weapon and his death. In any event, such scenarios are equally consistent with the available evidence, if not more so, than that relied upon by the Crown which also cannot account for two shots being heard in close succession.
116In summary, the evidence on this aspect of the Crown case established the following:
Bullets and cartridge cases
That the spent casings found in the laundry were fired from the same weapon.
That it was not possible to determine whether either of the bullets came from either of the casings.
That the bullet causing death was a .22 round.
That there was evidence consistent with the bullet that killed the deceased coming from the sawnoff rifle.
That with respect to the bullet inside the house, it was not possible to determine the calibre.
That the deceased was the only person known to have a sawnoff rifle in his possession.
The trajectory
Even if the marks inside the house did show a bullet's trajectory, it was not possible to estimate when that had occurred.
There was nothing that could link the trajectory to the bullet found in the kitchen area by police.
There was nothing that could link the trajectory with the gunshot that killed the deceased.
There was nothing that linked the bullet in the kitchen with the bullet that killed the deceased.
Other possibilities for the bullet in the kitchen
The deceased because of the fact that he was a drug dealer was receiving threats, had been assaulted by a group wanting to extort money from him and lived in constant fear.
A large number of people knew that he dealt drugs from his house and came during the night to purchase drugs.
117The evidence as to the distance from which the deceased was shot is equivocal. It is equally consistent with the hypothesis put forward by the Crown and with the evidence of Mr Di Maria. Detective Sergeant O'Hagan was of the opinion that the shot to the deceased's head was not fired from "close" distance, but without knowing the weapon that was used, she was not able to say whether that meant the shot was fired from more than 5, 10, 20 or even 30 cm away.
118Dr Little, the forensic pathologist, said that the bullet had fragmented on its path through the head and as it was going from left to right it was going slightly downwards. She ventured an opinion that the weapon firing that shot could have been anything from about half a metre to one metre away. While that evidence would tend to favour the Crown scenario, it was so extensively qualified by Dr Little as to indicate that the evidence of Detective Sergeant O'Hagan should be preferred on this issue.
119Doctor Little conceded that such an assessment should be made by a ballistics expert, although she had done some reading on the subject. She said that the only way you could really determine exact distances for any particular weapon was to test fire it and that it depended very much upon whether it was a handgun or a rifle. She agreed that she would defer to the opinion of a ballistics expert. The evidence of a ballistics expert was available and should be preferred. The evidence of Detective Sergeant O'Hagan was the only reliable expert testimony on the subject.
120The deceased was found to have a number of pink and green balloons in his oesophagus. These contained various amounts of illegal drugs. At least one witness gave evidence of purchasing drugs from the deceased packaged in this form. Dr Little gave the opinion of them having been swallowed shortly before death as they had not yet moved to the stomach.
121This is inconsistent with the deceased being surprised by the appellants. It strongly suggests that the deceased had some minutes within which to take precautions to prevent drugs being stolen from him. His actions in this regard are consistent with the deceased hearing noises coming from the laundry, putting a quantity of drugs out of reach, arming himself and going to investigate. It is consistent with the evidence of Mr Di Maria and supportive of a scenario consistent with innocence.
122The evidence of the neighbours does not support the Crown scenario. The layout of the kitchen, back veranda stairs and laundry makes it most unlikely that a shot could have been fired into the kitchen, followed almost immediately by a second shot if it were that second shot which killed the deceased.
There were two shots, probably fired very close together - Hughes, Fausett, Gaal.
Mr Pitt heard a single bang like a cap gun, followed within a "split second" by two more bangs.
That before the shots there was some conversation between men: Gaal, Pitt.
There was some yelling before the shots: Gaal, Pitt.
Part of the yelling was a male calling out to someone, like calling out "hallo" or hailing someone inside: Pitt.
There was a male calling out "Come back here" before the shots: Gaal.
There was the sound of something that sounded like wrestling, or the sound of someone slapping on the concrete: Pitt.
There was a gap between the sound of a person jumping over the fence and the gunshots: Pitt.
123None of that evidence would have assisted the jury on the question of whether they could find beyond reasonable doubt that the appellants went to the house armed. Indeed, what evidence there is tends to suggest that the appellants were calling out to someone inside and that someone later was calling for another to "come back".
124It is not possible to say whether the deceased had money and/or drugs, other than those he had swallowed in his possession at the time of death. To the extent that the jury were able to reason that money and/or drugs were taken, it did not assist in the resolution of the issue of whether the appellants arrived at the house armed. Such evidence was equivocal. There was evidence that the cavity had been broken into and general evidence about the deceased keeping large sums of money there, together with firearms. If, as seems likely, Mr Di Maria acquired the money for his holiday from the deceased's house, that did not assist the jury in determining whether the appellants had arrived at the house armed.
125The second area of evidence relied upon by the Crown does not greatly advance the Crown case. Although there is no evidence that Mr Penza told Mr Di Maria that the deceased possessed firearms and that he would resort to their use if threatened, an inference that he had done so could reasonably be drawn by the jury. That having been said, it does not necessarily follow as a matter of logical inference, that the appellants would arm themselves before going to his house. This is particularly so when there was no evidence that either one of them owned a firearm or had access to firearms.
126There is an equally available inference that because of their fear of him they would go to the deceased's house in order to ascertain whether he was at home and if not, look for drugs and money. Although there was some evidence that relations between Mr Penza and the deceased had not been good in the months leading up to his death, there is no evidence of such a breakdown in relations as would lead Mr Penza to threaten the life of the deceased.
127Some support for the latter scenario, i.e. one consistent with innocence, emerges from the first ERISP completed by Mr Penza on 18 April 2006.
"Q.107 Okay and how often, how would he sell it, would he leave the house or would people come to him or --
A. He would leave the house and then he would have people go to the house.
Q.108 Okay and when he left the house, what, would he get in his car, or would he walk or what would he do?
A. Car.
...
Q.121 All right ... when he went out selling drugs would he go out by himself or would he go out with others?
A. Yeah by himself.
Q.122 Do you know where he would usually deal his drugs to?
A. From here to Bexley.
Q. 123 Yeah just to Bexley?
A. All over like yeah furthest he goes is Bexley."
128These responses by Mr Penza ought be given considerable weight. They were made at a time when he was not charged, before any trial was envisaged against him and before he had instructed counsel. In those circumstances, his statement that he was aware that the deceased would go out at night could not be seen as a ruse by him to try to falsely prove that the deceased may not have been at the house when they arrived. It is unlikely that this statement is an early attempt by Mr Penza to corroborate the defence which would be maintained by the appellants at trial.
129The last four areas of evidence raise the same issue and suffer from the same difficulty. In the case of Mr Penza, the Crown submitted that the lies told by him in both his recorded interviews - that he had not been to the deceased's house on 17 April 2006 and that he knew nothing of the circumstances surrounding his death, were evidence of a consciousness of guilt and therefore were capable of proving that he and Mr Di Maria went to the deceased's house armed.
130It was common ground that Mr Penza had told lies to the police in his ERISPs in relation to those matters. The lies were clearly intended to separate him from the scene of the incident. Mr Penza had also told lies to Messrs Amil and Clarke as to his movements on that night. He told Mr Amil that he had not been at the deceased's house that night and he told Mr Clarke that he was at his girlfriend's that night.
131In the context of a defence case which conceded that Mr Penza had formed an intention to steal from the deceased, and where he knew that the deceased had been shot in the course of a struggle with Mr Di Maria, there is a ready explanation for the lies that does not go to consciousness of guilt with respect to murder. As his counsel put to the jury, he knew that he had done the wrong thing, when attempting to steal from his stepfather, and thereby causing his death. This was a plausible alternative explanation for the lies. In addition, there was evidence of a real basis for him to fear other family members. This provided a continuing reason why he did not simply admit that he had gone there with Mr Di Maria to steal from the deceased.
132The same submission is available in relation to the grazes and marks on his arms. He told Mr Clarke that these had been caused when he was trying to fix Phillip Minotte's car. Such marks as were described by Mr Clarke were also consistent with trying to break open the brickwork, concealing the wall cavity and with his blood which was found in the laundry. It was an available and plausible inference that Mr Penza was trying to hide his involvement with the plan to steal and the ultimate death of the deceased. That lie and the other lies did not compel a conclusion that if he told the truth, he would necessarily be admitting to murder.
133Leaving aside the question of the admissibility of the evidence as to lies (which forms the basis of another ground of appeal), its probative value was at best slight. It certainly was consistent with a consciousness of guilt but a consciousness of guilt of a different offence, i.e., the actual or attempted robbery of the deceased and an involvement in his death, but not necessarily an involvement amounting to the offence of murder. It was, of course, also consistent with a consciousness of guilt for the offence of murder. The difficulty for the Crown is that there was nothing in the evidence concerning the lies which rendered this evidence more consistent with the Crown case of murder than with the defence hypothesis that they were engaged in the theft of money and drugs when as a result of series of unfortunate events, the deceased died.
134The same considerations apply to the evidence of flight in relation to Mr Di Maria. The matters relied upon against him as indicating a consciousness of guilt were his departure for Malaysia on 18 April 2006, the adoption of a false name and the creation of a false identity when returning to Australia and his flight when stopped by police on 24 August 2007 after his return to Australia.
135The evidence of Mr Di Maria was that the motivation for his flight and other actions was a fear of retribution from members of the deceased's family, in particular the son Phillip.
136Those areas of evidence ((d), (e) and (f) in her Honour's written direction) are not capable of discerning between the existence of a consciousness of guilt, which might reasonably follow from the events described by Mr Di Maria (an attempted drug theft gone wrong, culminating in the death of the deceased following a struggle and the involuntary discharge of the firearm) or the scenario contended for by the Crown (a deliberate shooting of the deceased or felony murder). There is no rational basis upon which the jury could have been satisfied that one scenario was to be preferred to the other. Alternatively, (and this relates to Ground of Appeal 3), the evidence was not capable of discerning between a consciousness of guilt that might arise following the commission of murder as distinct from a consciousness of guilt that might follow upon liability for manslaughter.
137The appellants submitted that on this state of the evidence, the jury had no proper basis for preferring the scenario put forward by the Crown rather than that available to the defence since the evidence itself did not favour one over the other. The appellants relied upon the following statements of principle:
"We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct." (R v Ciantar [2006] 16 VR 26 at [40] (Warren CJ, Chernov,Nettle, Neave and Redlich JJA)
138Martinez v WA [2007] A Crim R 389, a decision of the Western Australia Court of Appeal (Martin CJ; Steytler P and Miller JA) adopted that statement of principle in Ciantar:
"As we have said, the potential probative force of an Edwards lie rests in its potential to amount to an implied admission of guilt. It can consequently never be intractably neutral in its effect, in the sense in which the phrase is used in the corroboration context, because it goes to the ultimate issue of guilt. Accordingly, where the phrase is used in this context, it really means no more than that the lie is incapable of amounting to an implied admission of guilt because there is an innocent explanation for it that is just as likely as the inference of guilt which might be drawn from the lie."
139Those statements of principle appear to develop what was said by the plurality (Deane, Dawson and Gaudron JJ) in Edwards v R [1993] HCA 63; 178 CLR 193 at 212:
"Whilst in many cases it may be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter ... The innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence."
140I accept the submission of the appellants that the evidence as to the lies told by Mr Penza and the flight and attempts to avoid recognition by the police on the part of Mr Di Maria, were not capable of rationally affecting the assessment of the probability of the crucial fact in issue in these proceedings, i.e. whether the appellants were armed when they went to the deceased's house. This is because the evidence was not able to differentiate in any meaningful way between the scenario put forward by the Crown and the equally plausible scenario relied on by the appellants.
141Such an approach is consistent with the observation by the plurality (Brennan, Dawson and Gaudron JJ) in Griffiths v R [1994] HCA 55; 69 ALJR 77. In a case involving a possible accidental shooting, the plurality said:
"In the present case, on the view of the evidence adopted by the
majority, two schoolboys, best friends without any evidence of
hostility between them, were out in the mountains together with a gun; the gun went off and killed one boy and the other went away and tried to lay a false trail about the incident but, when acknowledging that he shot and killed the other, said it was an accident. On that evidence, the possibility that the death was due to "accident" - stumbling when the gun was cocked and loaded or some other kind of accident - was clearly raised. Evidence that the appellant gave false or different stories about his contacts with John Apps did not disprove that John's death was caused by "accident". Indeed, it is arguable that that evidence did not tend to disprove accident. The burden of disproof that rested on the Crown was substantial, not merely formal. ..."
142The test to be applied in considering whether a verdict is unreasonable for the purpose of s 6(1) of the Criminal Appeal Act is well known. It was laid down by the majority of the High Court in M v R [1994] HCA 63; 181 CLR 487 in the following terms at 493:
"Where, notwithstanding that as a matter of law there is evidence
to sustain a verdict, a court of criminal appeal is asked to conclude
that the verdict is unsafe or unsatisfactory, the question which the
court must ask itself is whether it thinks that upon the whole of the
evidence it was open to the jury to be satisfied beyond reasonable
doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
And (at 494 - 495):
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence . In doing so, the court is not substituting trial
by a court of appeal for trial by jury, for the ultimate question must
always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
143That test has been affirmed by the High Court as the appropriate test to apply in a number of cases: MFA v R [2002] HCA 53; 213 CLR 606 at [25], [45]. In SKA v R [2011] HCA 13; 243 CLR 400 the plurality (French CJ, Gummow and Keifel JJ) said:
"11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."
Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.""
144Applying those statements of principle to the evidence in this matter, leads me to conclude that the verdict of guilty was unreasonable in respect of the appellants and cannot be supported by the evidence.
145None of the matters identified by the Crown compelled a finding that either appellant was armed before arriving at the deceased's house. There was no evidence of when the shot fired in the house occurred. On the Crown case, the shot must have been fired through the backdoor and then some time later, the fatal shot fired downstairs near the laundry. This not only does not explain how both spent casings ended up actually inside the laundry, but it does not help a jury understand how the sequence of events must have transpired and it is inconsistent with the evidence from the neighbours.
146For the Crown case to be correct, there must have been some discernible break between the shots fired. However, the evidence from the neighbours is unanimous on this point. All of them describe shots fired in rapid succession. There was no appreciable time gap between the shots. It would not have been possible, let alone plausible, for one of the appellants to have fired a shot through the back of the house and then almost immediately fired a fatal shot at the deceased, some metres away, downstairs, near or inside the laundry.
147On the other hand, there is a body of evidence which supports the proposition that the appellants were, at least initially, trying to buy drugs from the deceased when they thought he was home and it was only after they satisfied themselves that he was not at home that they had the courage to attempt to steal from him. Alternatively, if they had from the beginning formed the intention of stealing drugs and money from the deceased, they did so on the basis that they would only attempt the theft if they could ascertain that he was not at home.
148The appellants had certainly done what they could in relation to making a noise to rouse whomever might be in the house. The above alternatives provide the only reasonable explanation for the noise noted by the neighbours. If the intention were to attend the premises armed and to overpower or dominate the deceased, why wake him? If that were the plan, why be so loud as to wake the neighbours? Why make the noise from the property next door where other members of the family lived, thereby risking waking people who could not only assist the deceased if needed, but might also identify the appellants.
149It needs to be remembered that before convicting the appellants, the jury had to be satisfied that there was a plan to rob the deceased while armed and that they contemplated the real possibility that as a consequence of the plan, the deceased might be shot. Alternatively, the jury had to be satisfied that the appellants arrived at the house armed with a firearm intending to commit one of the specified felonies. There was no evidence, direct or indirect, which would allow the jury to be satisfied as to those matters.
150Apart from the evidence of Mr Di Maria, there was no direct evidence of any plan at all. So far as the Crown's circumstantial case is concerned, there was no evidence that supports the proposition that the appellants must have gone to the deceased's house to rob him, rather than to purchase drugs. To the extent that there is any evidence, it supports the latter scenario.
People often came in the late night, or early morning to purchase drugs from the deceased.
The deceased sold to a large number of people he knew, including family members.
The appellants were looking to continue the party.
The evidence from the neighbours supports loud voices calling out, or "hailing the deceased" before any evidence of a struggle.
People needed to call out to the deceased before he would come and sell them drugs.
151The evidence supports the proposition that the appellants were checking to see if the deceased was home.
The calling out went on for some time, suggesting that they wanted to be sure, if he were inside, that he heard them.
They called out from the property next door where members of the deceased's family continued to live.
They had knocked already and called out with no answer.
The deceased did go out regularly to do drop-offs.
152None of the evidence compels a conclusion that to the extent that there was a plan, it involved anything more than stealing. There was no evidence that the appellants had a firearm, let alone a .22 calibre weapon, or had access to such a weapon that may have fired the fatal shot. Given the fairly detailed evidence of their whereabouts during most of the previous day, neither of them had much opportunity to obtain a weapon from another place. There was no evidence from people who associated with them that either appellant had ever been seen in possession of a firearm of any kind, let alone a .22 sawnoff rifle, if that in fact were the weapon which fired the shot. The deceased was only person who was known to have access to firearms.
153As indicated, I am satisfied that this ground of appeal should succeed. The consequence of success on a ground of appeal so framed is the quashing of the conviction and the entry of a verdict of acquittal. That conclusion renders it unnecessary to resolve the remaining grounds of appeal. However, in deference to the detailed arguments which were put in relation to the other grounds of appeal, I propose to deal briefly with them.
Ground of Appeal 2: The learned trial judge erred by failing to direct the jury that, in respect of felony murder, the act causing the death had to be voluntary.
154Although the parties placed emphasis on the antecedent issue of whether the accused came to the deceased's home armed, the appellants submitted that the evidence of Mr Di Maria also clearly raised the possibility of death being caused by an involuntary discharge of the firearm. They submitted that there was an issue as to whether the act causing death (i.e. the discharge of the firearm) was in fact a voluntary act of the relevant appellant. They submitted that the issue arose in circumstances where the only evidence of the precise circumstance of the shooting was given by Mr Di Maria, i.e. the Crown was unable to adduce evidence about the precise circumstances in which the deceased came to be shot.
155The appellants accepted that the issue did not arise in relation to the extended joint criminal enterprise case because the jury was directed that to find the appellants guilty on that basis, it had to be satisfied that one of the appellants "deliberately discharged the firearm at Mr Minotte, intending to kill him or intending to cause really serious injury".
156The appellants submitted that the issue did arise in relation to the felony murder case. They submitted that the act or omission causing death in a felony murder must be a voluntary act. They submitted that where the evidence raised voluntariness as an issue, the trial judge was obliged to put the issue properly to the jury.
157The appellants submitted that the trial judge was required to do three things:
Direct the jury that it had to be satisfied beyond reasonable doubt that the act causing death was a voluntary or willed act of the accused.
Explain that identification of the act causing death was a question of fact for the jury.
Explain these concepts to the jury and identify the evidence that was relevant to the issue so that the direction might be given proper effect by the jury.
158To support this proposition, the appellants relied upon Ryan v R [1967] HCA 2; 121 CLR 205. The facts of Ryan involved the accused entering a service station and demanding money while pointing a loaded and cocked sawnoff rifle at the attendant, without the safety catch applied. While still pointing the rifle with one hand, he attempted to tie the attendant up with his other hand. On the attendant's sudden movement, the accused's finger pressed the trigger without, according to the accused, "intention on his part". The attendant was killed instantly. The accused's defence to the charge that he murdered the attendant was that the killing, being criminal but accidental, was manslaughter.
159At pp 216 - 218 Barwick CJ said:
"In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. ... If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. No doubt care will be taken by the presiding judge that the available material warrants the raising of this specific issue. In doing so, he will of course have in mind that the question for him is whether upon that material a jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act attributed to the accused. Also, the presiding judge where the circumstances of the case are like those of the instant case, will explain the difference between the third and fourth views (ante) so that the jury are given to understand the precise question to which they have relevantly to address themselves. Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury.
In outlining the facts of this case, I have indicated that the material provided by the statement made by the accused by virtue of the right given him by s. 496 of the Crimes Act, and the evidence of the police officers would have been sufficient to call for consideration whether the act causing death, if it was the discharge of the gun, was the act of the applicant and to entitle the jury at least to remain in doubt whether that discharge was willed by the applicant and voluntary.
I have said that these consequences followed, if the jury thought the discharge of the gun was the cause of death. That means that it would have been necessary, in my opinion, for the jury to have determined to their satisfaction what was the act which caused the death charged. Ordinarily, the identification of the act causing death gives no difficulty, a circumstance which may tend to obscure the logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s 18 are to be satisfied."
(The reference in the above quotation to the "third and fourth views", is a reference to a voluntary but unintentional act, as opposed to an involuntary or unwilled act discussed in the judgment at p 209.)
160The appellants noted that this statement of principle was approved by the plurality (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Royall v The Queen [1991] HCA 27; 172 CLR 378 at 385 where Mason CJ said:
"It is convenient to deal initially with the question of causation. The applicant submits that neither the trial judge nor the Court of Criminal Appeal defined adequately the act done by the applicant which was alleged to have caused the death of the deceased, thereby creating difficulties in determining the issues of causation and intent, in particular the coincidence of act and intent. Ordinarily there is no occasion for a trial judge to spend much time on the identification of the act causing death, but there is a "logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s18 are to be satisfied", to repeat the words of Barwick C.J. in Ryan v The Queen. In Ryan the trial judge's directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan's state of mind satisfied the requirements of s 18, depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased's back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable. ...
In Ryan, the Chief Justice pointed out that "the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction". So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased's death. In this respect there was, in my view, just as there was in Ryan, a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death. It is not to the point to say that in the present case the requirement of intent under s18 was the same, no matter which of the acts identified by the Crown was selected by the jury as the cause of death. The point is that, in ascertaining whether there was the requisite intent, different matters may need to be taken into account, depending upon which act is identified as the act which caused death."
161The appellants also relied on Murray v R [2002] HCA 26; 211 CLR 193, although they accepted that the result of that case depended upon the relevantly different Queensland statutory provision. Nevertheless, the majority affirmed the obligation of the trial judge to give careful directions on voluntariness and causality:
"13 ... Although it is accurate to speak in murder cases of the "act" referred to in s 23(1)(a) as the "act causing death", it is for the jury to determine what act or acts were done by the accused and whether they or any of them caused death. Thus, in Ryan, Barwick CJ expressed the view that, on the facts of that case, "the jury could choose the presentation of the gun in the circumstances [in which it was presented] or its subsequent discharge as the act causing death." And on the view that the act causing death was the discharge of the gun, his Honour allowed that there were at least four possibilities, namely:
1 voluntary discharge with the intention of harming the deceased;
2 voluntary discharge with the intention only of frightening the deceased;
3 voluntary discharge in panic with no specific intention either to do harm or to frighten the deceased;
4 discharge by the pressing of the trigger in a reflex, convulsive movement.
His Honour expressed the view, in relation to the fourth of those possibilities, that the accused's description of the killing as an "accident" was inconsistent with an admission that the gun was voluntarily discharged.
14 Subject to two matters which will be dealt with shortly, I think the analysis by Barwick CJ in Ryan is legally and logically correct and that that analysis is applicable in this case. The first, as has already been noted, is that Ryan was concerned with a charge of murder under the Crimes Act 1900 (NSW). At the relevant time, s 18(1) of that Act defined murder to include an act causing death that was done with reckless indifference to human life or done in an attempt to commit or during or immediately after the commission of an act obviously dangerous to human life. Thus, the act causing death could be identified by Taylor and Owen JJ as "the presentation of the [loaded and cocked] rifle ... with the finger of the [accused] on the trigger in circumstances in which an attempt at resistance might well have been expected". (Gaudron J)
...
89 I agree with Gaudron J that the identification of what was the relevant "act" and whether it was willed or not were questions for the jury. They were not questions of law for the judge. Even if the final "act" was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate "act" that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a "reflex" act, it was still a question for the jury whether that act was properly to be viewed as having occurred "independently of the exercise of the [appellant's] will." (Kirby J)
...
148 There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter's acts in placing himself in such a position as to give the "act" the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the "act" itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident)." (Callinan J)
162The appellants submitted that in the context of this trial, those obligations on the part of the trial judge, subsisted irrespective of whether or not one of the appellants came to the house armed. This was because identification of the act causing death was a matter for the jury, properly instructed, to determine. They submitted that it was not without significance that in Ryan, Barwick CJ had reasoned that attending the crime scene with a firearm was too remote to form part of the act causing death.
"Whilst, of course, all that happenings of the evening antecedent to the discharge of the gun might be regarded for the purpose of deciding whether some act of the applicant which caused the death of the deceased qualified under one or more of the conditions of culpability for murder which are set out in s 18, they could not, in my opinion, be regarded in the aggregate as the act of the accused causing death. Such a course, in my opinion, not merely lacks the requisite precision but fails to provide a subject of which one or more of the said conditions or concomitants could be predicated. The earliest act of the applicant which, in my opinion, could have been selected by the jury as the act causing death was the presentation of the gun towards the back of the deceased after, at the applicant's bidding, he had turned around to enable his hands to be tied behind him. Thus at the most, the jury could choose the presentation of the gun in the circumstances or its subsequent discharge as the act causing death. For my part, I would think the latter might well have been the obvious choice when the difficulties which would arise in connection with the former, if the jury accepted the fourth view of the facts to which I earlier referred, are considered." (p 218)
163The appellants submitted that the directions given by the trial judge omitted to put the issue of voluntariness to the jury. The appellants articulated their criticism of the directions given by the trial judge on this point as follows.
164In relation to the felony murder case, the jury was not directed that it had to be satisfied beyond reasonable doubt that the act causing death was a voluntary or willed act of the accused. The jury was not told that identification of the act causing death was a question of fact for its own determination. These concepts were not explained to the jury, nor was the evidence relevant to the issue summed up for the jury's consideration. The directions given on felony murder tended to convey the opposite impression to what the law required. As the jury was directed, felony murder was established irrespective of how the weapon came to be discharged and regardless of whether the firing of the weapon was a "deliberate act".
165The jury was directed in writing as to the elements of the felony murder case in MFI 19 as follows:
"1. The accused each agreed to carry out an armed robbery in company on Mr Minotte, or they each agreed to break enter and steal, in company, from Mr Minotte's home while one of them was armed with a firearm;
2. That the offence was committed or there was an attempt to commit that offence;
3. During the course of committing the offence, or immediately after its commission, one of the accused discharged the firearm, causing Mr Minotte's death, and
4. The discharge of the firearm during the commission of the offence was a contingency (or possible happening) which the other accused had in mind, whether or not the gun was fired deliberately and whether or not the gun was discharged for the purposes of the joint criminal enterprise."
166These directions were repeated in the summing up when it came to element (4) of the written direction. The trial judge said (at SU 41):
"... and 4, that the discharge of the firearm during the commission of the offence was a contingency or a possibility - contingency does not mean much more than possibility - that the other accused had in mind whether or not the gun was fired deliberately, and whether or not the gun was discharged for the purposes of the agreement.
So that is where felony murder differs quite markedly from the extended joint criminal enterprise. Once you are satisfied beyond reasonable doubt that the accused were in fact committing a felony, and the gun was discharged in the course of committing that felony, and the death of Mr Minotte results, it does not matter how the gun was discharged. Because the law takes the view that if you are in the process of committing a very serious offence and a death results, you should be liable for the consequences of the discharge of the gun."
167These directions took the issue of voluntariness away from the jury's consideration. In that sense, they were wrong in law and gave rise to a miscarriage of justice. The jury would have been required to convict the appellant for murder on these directions, even had it formed the conclusion that death was caused by circumstances that did not involve a voluntary or willed act of the appellant (e.g. the gun discharged involuntarily during a struggle with the deceased). This deprived the evidence of Mr Di Maria concerning the circumstances of the struggle and the fatal shot of any efficacy and thereby deprived him of an opportunity of being acquitted of murder.
Ground 3: The learned trial judge erred by failing to leave manslaughter by unlawful and dangerous act for the jury's consideration.
168Manslaughter due to intoxication was left to the jury, but only as an alternative verdict to murder on the basis of extended joint criminal enterprise liability. The jury was directed that there could be no alternative verdict of manslaughter in respect of the felony murder case (SU 41). An alternative verdict of manslaughter by unlawful and dangerous act was not left for the jury's consideration. The appellants submitted that this was an error of law and that the trial miscarried for this reason. It is common ground that the trial judge was not asked to leave manslaughter to the jury.
169The appellants relied upon the summary of principle by Beazley JA (with whom James and Hall JJ agreed) in Blackwell v Regina [2011] NSWCCA 93; 208 A Crim 5 392:
"49 The overriding requirement of the criminal justice system is that an accused person have a fair trial according to law. If there has not been a fair trial there will have been a miscarriage of justice. A fair trial includes the entitlement of an accused person to have the jury directed in accordance with law: see Pemble v The Queen [1971] HCA 20; 124 CLR 107 per Barwick CJ, at 117. As Barwick CJ explained, this involves directing the jury as to the facts which might lead to an alternate available outcome other than the specific offence charged. Subject to the application of the proviso, an accused person who has not had a fair trial will be entitled to have a conviction set aside.
50 The question as to whether there has been a miscarriage of justice has been considered in circumstances where an alternative count should have been but was not left to the jury. Whether or not there has been a miscarriage of justice depends upon whether the appellate court is satisfied that a jury properly instructed, including on the alternative charge, would necessarily have returned a verdict on the principal charge: see Gilbert v R [2000] HCA 15; 201 CLR 414 and Gillard v R [2003] HCA 64; 219 CLR 1.
51 In Gilbert the appellant was charged with murder. However, the jury was erroneously instructed that there was no possibility that the appellant could be found guilty of manslaughter. The jury convicted the appellant of murder. On appeal to the High Court, the Crown submitted that as the jury had been correctly directed in respect of the elements of murder, the verdict demonstrated that they were satisfied of all the elements of murder, including the higher state of knowledge required for murder, as opposed to manslaughter: see R v Evans and Lewis [1969] VR 858 at 871. This proposition was rejected. Gleeson CJ and Gummow J, at [19], adopted the following statement of principle by Lord Tucker in Bullard v The Queen [1957] AC 635 at 644:
"Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached." "
170The appellants submitted that the evidence of Mr Di Maria was that the appellants did not come to the house of the deceased armed. He also gave evidence that the deceased was shot either involuntarily or at the least, without intent to kill or inflict grievous bodily harm in the course of a struggle over the firearm. They submitted that there was other evidence in the trial which supported this evidence. They submitted that in those circumstances, the trial judge was obliged to leave manslaughter by unlawful and dangerous act for the jury's consideration.
171The appellants submitted that the jury should have been left with a choice that a verdict of manslaughter by unlawful and dangerous act could be returned on the basis that the appellants agreed to commit a break and enter (simpliciter) offence and that one of them armed himself at the scene immediately before the shooting. Alternatively, they submitted, manslaughter was available on the basis identified by the Crown prosecutor during an exchange with the trial judge:
"... Only one of the two offenders did the shooting. If the other didn't contemplate the possibility of a shooting within intent to cause serious bodily harm, but did consider the possibility of some other lesser injury, then manslaughter could arise." (T.678)
172The appellants submitted that leaving manslaughter on this latter basis was considered in Gillard v R [2003] HCA 64; 219 CLR 1 (Gleeson CJ and Callinan J at [29], Gummow J at [32], Kirby at [74] ff, Hayne J at [106] and [125] ff).
173The appellants submitted that both limbs of the prosecution case were apt to raise the question of their liability for manslaughter. Manslaughter was likely to arise in a case involving extended joint criminal enterprise murder, because of the possibility that an accused would lack the necessary foresight as to the intended consequences of the act causing death (Gillard v R). In respect of felony murder, liability for manslaughter by unlawful and dangerous act would potentially arise where there was an issue concerning the nature of the foundational offence - in particular, whether it was an offence punishable by imprisonment for life or 25 years or some lesser offence.
174The reason why manslaughter was not left to the jury is tolerably clear. On the appellants' case at trial, they were somewhat opportunistically attempting to steal drugs and money when they were confronted by the deceased, who was armed, and who attempted to shoot Mr Di Maria before a struggle ensued. On Mr Di Maria's evidence, his actions were in self-defence and reasonable.
175As the submissions by the appellants make clear, however, the scenario described by Mr Di Maria was not the only one available on the evidence. There were variations of that scenario and to that put forward by the Crown, which were consistent with manslaughter by an unlawful and dangerous act. The most obvious of those was if the jury were satisfied that the appellants had armed themselves before going to the deceased's house but was not satisfied that the "act" which led to the deceased's death was done with one of the requisite intents for murder.
176As the authorities make clear, just because the jury entered a verdict of guilty on the murder charge, does not mean that if properly instructed on manslaughter, they would have necessarily returned the same verdict. In Blackwell Beazley JA said:
"83 The evidence in relation to intoxication and the impulsivity of the appellant's behaviour raised an issue as to the nature of the appellant's intention. The jury's question to the judge reveals that it was actively concerned about that issue. In my opinion, it cannot be said that on the evidence, notwithstanding the error in respect of the alternative count, the appellant must have been convicted on the s 33 count. This was a matter where it was open to the jury to convict on an alternative count of reckless infliction of grievous bodily harm. It is an exemplar of Callinan J's observation in Gilbert, namely, that where there is choice of decisions to be made, the choice actually made will be affected by the choices offered."
177I am satisfied that this ground of appeal has been made out. For the reasons set out in the appellants' submissions, there was a proper basis for manslaughter to be left to the jury.
Rule 4
178The success of this Ground of Appeal and Ground of Appeal 2, gives rise to the question of whether the appellants should be entitled to rely upon these grounds, when no objection was taken at trial.
179Rule 4 of the Criminal Appeal Rules provides as follows:
"No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal."
180Defence counsel at trial did not ask for a direction as to voluntariness in relation to felony murder and specifically eschewed any direction as to manslaughter. Accordingly, I am of the opinion that leave is required. Leave to rely on an error to which no objection was taken at trial will be granted where the appellant can demonstrate that the error led to a miscarriage of justice (R v Abusafiah [1991] NSWCCA 542; 21 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at [20]; R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [99]).
181I have concluded that as the jury were not instructed in respect of felony murder that the act causing death had to be voluntary, and as to the availability of the alternative verdict of manslaughter, this may have caused each appellant to lose a real chance (or a chance fairly open to him) of being found not guilty of murder but guilty of manslaughter (R v Kanaan at [101]). The fact that there was an obligation on the trial judge to give such direction (Pemble v The Queen) is further support for the grant of leave.
182As was said by the Court in Carney v R; Cambey v R [2011] NSWCCA 223 (Whealy JA; James and Hoeben JJ):
"69 It has been said that the Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial ( Darwiche at [170]). We would not wish to undermine this proposition. Where, however, the failure to leave the alternative verdict of manslaughter may have caused an accused to lose a real chance of being found not guilty of murder but guilty of the alternative charge, this places the case in a different category. We recognise that, as was probably the case here, the appellants' counsel may have been reluctant, as a matter of tactics, to see manslaughter left. But directions could have been framed by the trial judge so that it was left as an alternative verdict without unduly prejudicing the appellants in the case each wished to make. We have little doubt that had her Honour been asked to leave manslaughter, she would have done so, and that she would have crafted directions carefully to avoid any prejudice to the case presented by the appellants."
183It follows that I consider that this is an appropriate case for leave to be granted to allow the appellants to pursue Grounds of Appeal 2 and 3.
Ground of Appeal 4(a): The evidence relied on by the Crown to establish consciousness of guilt on the part of the appellants was inadmissible.
Ground of Appeal 4(b): The learned trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning in relation to the appellants.
184When considering this ground of appeal, it needs to be kept in mind that the evidence of the lies told by Mr Penza and of flight and attempts to avoid apprehension by Mr Di Maria, was admitted without objection. It should also be noted that although defence counsel had opened to the jury as to what their cases would be, this evidence was adduced before Mr Di Maria gave his evidence.
185The appellants submitted, by reference to the statements of principle in R v Ciantar, Martinez v WA and Edwards v The Queen previously set out ([137] - [139]), that the evidence of consciousness of guilt relied on against the appellants was not admissible because it was not capable of distinguishing between a consciousness of guilt which might reasonably follow from the murder of the deceased and that which might follow from the scenario described by Mr Di Maria, i.e. an attempted drug theft culminating in the death of the deceased. The appellants submitted that the evidence was inadmissible because it was not relevant in the sense that it was not capable of rationally affecting the assessment of the probability of a fact in issue in the proceedings.
186Alternatively, the appellants submitted that the evidence should have been subject to a discretionary exclusion on the basis that its potential prejudicial effect (due to the risk of the evidence being given undue weight) far outweighed its very slight probative value - s 137 of the Evidence Act 1995.
187In order to assess this ground of appeal, it is necessary to set out the trial judge's directions as to consciousness of guilt. Her Honour said:
"It is not disputed that Mr Di Maria left the country rather precipitously on 18 April and it is not disputed that he adopted a false name and returned to the country under that false name and had certain documents that were in false names. And it is not disputed that he ran from the police when they stopped him on 24 August 2007. So none of those things are disputed. The real dispute is whether those items of evidence in combination lead to that one conclusion.
Now, let me just say something about items (c), (d), (e) and (f). You will see that the Crown relies upon the fact that Mr Penza told lies in his interview with the police and the Crown relies on the circumstances surrounding Mr Di Maria's departure from Australia which in law we call "evidence of flight".
Now there are some further directions that I must give you about those particulars items of evidence and I am referring to (c), (d), (e) and (f). They fall into the category of what the law calls "consciousness of guilt". In other words the Crown says that the accused each behaved in the way they did because they knew that they had gone to number 24, armed with a firearm, and that they had killed Mr Minotte. That is, they did those things out of a consciousness of guilt.
Now Mr Penza's lies to the police specifically that he did not go to the deceased's house on 17 April and he knew nothing about his death and Mr Di Maria's flight from Australia and his return under a false name with a false identity document and his attempt to run from the police when he was arrested, the Crown said they were all motivated by that consciousness of guilt. But, before you could use that evidence in support of the inference the Crown asks you to draw, you have to be satisfied of the following things:
Firstly, that the conduct was deliberate. It has not been suggested to you that the lies were not deliberate or that Mr Di Maria's flight from Australia was not deliberate. So that will not I suggest unduly trouble you.
Secondly, that the conduct relates to an issue that is material or relevant to the offence charged and again it is not suggested to you that Mr Penza's lies or Mr Di Maria's flight is not related to a relevant issue in the proceedings.
Thirdly, that the conduct reveals a knowledge of the offence or some aspect of it and that is not disputed either. Indeed, both of the accused accepted that their conduct was in effect related to or revealed a knowledge by them of the fact that Mr Minotte had died, not that of course that they had necessarily been there armed but certainly it reveals a knowledge of the fact that Mr Minotte had died in circumstances that connected them to the death.
And lastly you have to be satisfied that the lie was told by Mr Penza and that Mr Di Maria fled the country because of them knew that the truth of the matter would implicate him in the commission of the offence or, to put it another way, because of a realisation of guilt and a fear of the truth, and this last matter is the matter that is really in dispute, as it were, when it comes to your use of lies or flight for the purposes of drawing this inference.
I emphasise that you must be satisfied that what was in the mind of each of the accused was guilt of the offence charged - that is, guilt of the offence of murder and not some other crime. It is not just a question of them feeling guilty over the circumstances in which Mr Minotte died if, for example, that death was occasioned by some accidental discharge of the gun. That is not the kind of consciousness of guilt that we are talking about. It has to be guilt of the offence of a murder and not some other offence.
You must remember that people do not always act rationally and that conduct of this sort might sometimes be explained in other ways. There may be reasons for telling the lie and fleeing from the police apart from the realisation of guilt.
For example, such conduct may be the product of panic. It may be to escape an unjust accusation. It may be to protect some other person or to avoid a consequence unrelated to the offence and you have heard from Mr Di Maria at least that in his mind the motivation for his flight was a fear of Phillip Minotte, a fear of some retribution from members of the deceased's family and, whether or not you accept that, is a matter for you. I am just pointing out that that is the explanation Mr Di Maria has given.
If you think there's a reasonable possibility that the conduct of the accused can be explained in such a way, then you cannot use it for the purpose of drawing the inference that the Crown asks you to draw.
If you are satisfied, however, that the accused's conduct cannot be explained in that way, then you are entitled to use that finding in combination with the other two factors (a) and (b) in order to draw the inference that the Crown asks you to draw." (SU 20 - 22)
188The submission as to consciousness of guilt was put to the jury by the Crown prosecutor as follows:
"As soon as Flight Centre opened he went there, booked a flight straight away. Again, what's his reason to flee the country? Because he could get into trouble for trying to steal some drugs. There's no criminal offence of defending your own life, trying to save yourself. He fled the country because he got the money. He had got what he wanted and wanted to go and take advantage of it. More than that, he never wanted to come and face up to what he'd done.
He came back into Australia under a completely different name. No one even knew he was back. You heard from Detective Malone he didn't even know how he got back in the country. You know now because he has given evidence about it. He changed his name to Michael Watkins. He didn't want face you members of the jury and face this allegation. Even on 24 August 2007 he'd run from the Police. Why? Because he was afraid that people would find out that he had to defend his own life from Christian Minotte or that people would find out he wanted to buy drugs or steal some drugs, or was his number one fear he'd be dealt with for trying to rob a man in the course of which either he or Frank Penza shot and deliberately killed Christian Minotte. Was that what he was fleeing from?" (T.709.35 - 710.6)
189The proposition put by the Crown prosecutor to the jury was that the reaction by the appellants in telling lies and by fleeing the jurisdiction were excessive when one took into account the facts of the deceased's death as put forward by them and were more consistent with them having committed murder.
190The appellants' submission receives support from what was said by Simpson J (with whom Ipp JA and Adams J agreed) in R v Cook [2004] NSWCCA 52 where her Honour said in relation to the principles applicable to the admissibility of evidence as to consciousness of guilt:
"23 To these I would add that the lie must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged.
24 Two separate issues arise when the Crown tenders such evidence. The first goes to the admission of the evidence. In order to admit the evidence tendered, the trial judge must be satisfied that it is capable of meeting the five conditions outlined. If it is not so capable then the evidence is inadmissible. ..."
191It seems to me that care has to be taken when applying her Honour's fifth principle. On the facts in Cook, it was clearly applicable. There are, however, limits to its applicability. It does not mean that in any case where there was evidence of consciousness of guilt with regard to a major crime, and the accused accepted that he or she had committed a minor crime that therefore evidence of consciousness of guilt would be inadmissible. If there is a logical connection between the actions relied upon as evidencing a consciousness of guilt and the offence in respect of which that evidence is adduced, I would regard the evidence as admissible.
192In my opinion, such a logical connection existed here. On either scenario, the actions of the appellants were motivated by their knowledge of the death of the deceased and the part they had played in the occasioning of his death. It was a quintessential jury question as to whether it considered, as the Crown invited, that it was more consistent with them having committed the offence of murder. It is also not without significance that no objection was taken to the evidence on the basis of inadmissibility. I have concluded that the evidence was admissible.
193No challenge was made by the appellants to the directions given by the trial judge as to the use which the jury could make of the evidence, nor could there be. Her Honour clearly and succinctly pointed out to the jury that it must be satisfied that what was in the mind of each of the appellants was consciousness of guilt of the offence charged before it could be taken into account.
194This ground of appeal raises another issue which was not addressed in submissions to the Court but in respect of which something needs to be said. It relates to a difference of opinion which emerged in the Court as to whether the provisions of s 137 Evidence Act 1995 are mandatory, so that a trial judge has an obligation not to admit evidence coming within the section, even though no objection was taken to that evidence at trial.
195In Steve v Regina [2008] NSWCCA 213; (2009) 189 A Crim R 68 Beazley JA (with whom Hislop and Price JJ agreed) said:
"60 ... Even if some basis of relevance could be found (other than as tendency or propensity evidence) the evidence was prejudicial. The trial judge was under an obligation to refuse to admit the evidence, if its probative value was outweighed by the danger of unfair prejudice to the defendant: Evidence Act, s 137. Section 137 is mandatory in its terms and is not dependant upon objection being taken to the admission of the evidence. As Heydon JA (as his Honour then was), stated in R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44, at 47:
"... the terms of [s 137] are mandatory. They must be complied with whether or not a party who might gain from their invocation actually invokes them. It is notable that Pt 3.11 (in which s 137 appears) ... [is] not listed as among the provisions which the court may, with the parties' consent, dispense with: s 190.""
In FDP v R [2008] NSWCCA 317; 74 NSWLR 645 the Court (McClellan CJ at CL; Grove and Howie JJ) said:
"16 Because no objection was taken to the evidence, there was no occasion for the trial judge to consider the probative value of it or the danger of unfair prejudice arising from it; cf s 137 of the Evidence Act. Yet the appellant argues that the evidence to which the ground relates was either inadmissible or unfairly prejudicial such that it should never have been before the jury. Having regard to the issue raised in this appeal the Court brought to the attention of the parties, before the hearing, the decision in Steve v R [2008] NSWCCA 231 so that they could consider it and if necessary rely upon that decision or seek to distinguish it. The appellant embraced the decision. The Crown submitted that the decision should not be followed with regard to the interpretation of s 137 favoured by that Court.
17 In Steve this Court held that s 137 was mandatory so that a trial judge has an obligation to reject evidence where its probative value is outweighed by the danger of unfair prejudice notwithstanding that no objection had been taken to it during the course of the trial, see per Beazley JA at [60], quoting from Heydon JA in R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44, at 47, and at [82].
18 It should be noted that there is no reference to r 4 in the judgment of Beazley JA notwithstanding that no objection was taken to any of the evidence that was the subject of the grounds of appeal. It may be the case that the Crown did not rely upon r 4 as there is no reference to it in the summary of the Crown arguments contained in the judgment of her Honour. Beazley JA concluded at [87] that "the Court cannot be satisfied that no substantial miscarriage of justice has occurred". But had r 4 been invoked, the appellant would have had to satisfy the Court that there had been a miscarriage of justice notwithstanding the failure of defence counsel to take any objection to the evidence: Papakosmas v The Queen (1999) 196 CLR 297 per McHugh J at 319; R v Moussa [2001] NSWCCA 427; R v Villa [2005] NSWCCA 4 at [77].
19 Nor is there any reference in the reasoning of the Court to the decision of this Court in R v Reid [1990] NSWCCA 258 or the decision of the High Court in Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1. It is apparent that the Court's attention was not brought to either of these important decisions that deal with the interpretation of evidentiary provisions in legislation in this State. We note that there is no reference to Reid in the judgment of Heydon J in Le and Dhanhoa was a judgment delivered after Le was decided."
196The Court then at [20] - [28] analysed those decisions and others to arrive at the following conclusion:
"29 So far as s 137 is concerned, we do not understand how a trial judge could reliably undertake the balancing exercise that the section requires between the probative value of the evidence and the danger of unfair prejudice without a complete understanding of both the Crown and defence cases and the arguments to be addressed to the jury by the parties. Yet the section is engaged when the Crown first introduces the evidence that is later impugned in this Court. This difficulty is alone sufficient to lead us to the conclusion that s 137 cannot operate to oblige a judge to reject evidence that may later be seen in the context of the whole of the trial to have resulted in a miscarriage of justice.
30 Strictly speaking it was unnecessary for the Court in Steve to determine the issues raised by construing s 137 as it did. However, nothing we have written is to be taken as suggesting that the decision was in any way erroneous in finding that the trial miscarried by the reception of the evidence in the circumstances of that particular case. Nor does it necessary follow that a miscarriage of justice would not have been found had r 4 been applied. However, we respectfully disagree with the finding that the miscarriage of justice arose from the failure of the trial judge of his own motion to reject evidence to which no objection had been taken by the solicitor for the defence."
197In Chand v R [2011] NSWCCA 53 with the concurrence of McClellan CJ at CL and Blanch J, I upheld a ground of appeal based on s 137 Evidence Act, even though objection had not be taken to the evidence at trial. I did so because the Court was referred to the decision in Steve v R but was not referred to FDP. Having now had the opportunity of reading both those decisions, I have no doubt as to the correctness of the reasoning in FDP and that on this issue, Le and Steve should not be followed.
198In Shepherd v R [2011] NSWCCA 245 the Court (Tobias AJA, Johnson and Hall JJ) confirmed the correctness of FDP as follows:
"30 This Court has held that s.137 of the Act does not impose an obligation on a trial judge to reject evidence to which no objection has been taken at trial by defence counsel: R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at 652 [28]-[30]. We consider that this Court should be careful in the assessment of submissions made by reference to provisions of the Act which are said to apply, when no argument to that effect was made to the trial Judge (in particular by experienced counsel)."
199It follows that her Honour did not err in admitting the evidence as to consciousness of guilt without carrying out the balancing exercise mandated by s 137 Evidence Act 1995. Since no miscarriage of justice was involved in the admission of the evidence I would, had it been necessary, have rejected this ground of appeal under r 4.
200This ground of appeal has not been made out.
Conclusion
201In this Court the Crown sought to formulate a case against the appellants which was not run at trial. The Crown was not allowed to pursue that course. On that issue I gratefully adopt the reasons of Campbell J at [215] - [225].
202For the reasons set out in the consideration of ground 1, the orders which I propose are as follows:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The verdicts of guilty, entered on 30 July 2009 in respect of both appellants, should be quashed and in lieu thereof there should be entered a verdict of acquittal in favour of both appellants.
203CAMPBELL J: I have had the great advantage of reading the judgment of Hoeben JA in draft. With the exception of that aspect of Ground 4 dealt with by his Honour from [194] to [198], with great respect, I agree with his Honour's reasons and with his orders. Button J has arrived at a different view about whether a shot was fired into the deceased's kitchen on the night of his death. I acknowledge the force of his Honour's analysis. Had my view been like his, I would have arrived at the conclusions his Honour expresses at [268]-[270].
204As it is a serious step for a Court of Criminal Appeal to set aside a conviction based on the verdict of a jury (MFA at 621 [51]), I wish to briefly state my own conclusion in that regard.
205As Hoeben JA points out at [142] by reference to the well known authorities there cited, the central issue to be decided by this Court is one of fact (M v R at 492-3 per Mason CJ, Deane, Dawson and Toohey JJ). This being so, leave is required to advance Ground 1 (s 5(1)(b) Criminal Appeal Act 1912) and, in common with Hoeben JA, I would grant it.
206I wish to record that I have made my own independent assessment of the evidence and I have determined that notwithstanding that there is evidence upon which the jury might have convicted, nonetheless the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence
(s 6(1) of the Criminal Appeal Act), for the reasons advanced by Hoeben JA.
207In arriving at this conclusion, I have borne firmly in mind that the jury had the "advantage" of seeing and hearing Mr Di Maria give evidence. And I have had regard to the argument advanced on behalf of the Crown, based on R v Hillier [2007] HCA 13; 228 CLR 618 at 638 [48] per Gummow, Hayne and Crennan JJ, that a circumstantial case like this is not to be considered piecemeal (see also Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521 at 535; Plomp v The Queen [1963] HCA 44; 110 CLR 234 at 242). In Hillier the plurality said at 639[49] - [50]:
...the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that [Mr. Hillier] was guilty.
In that regard it is important to recognise that Mr Hillier gave evidence at his trial. The Court of Appeal made no reference to this evidence when considering whether the jury's verdict should be set aside. One question which the jury was bound to consider was what they made of Mr Hillier's evidence. Did they believe that Mr Hillier may have been telling the truth when he denied responsibility for Ms Hardwick's death? Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) that he was not? (Emphasis in the original)
208It should also be noted, for what it is worth, that Mr. Penza relied upon Mr Di Maria's evidence at the trial, although Mr Penza himself, as Hoeben JA has pointed out, did not give evidence.
209I acknowledge that seeing and hearing Mr Di Maria give evidence is an advantage enjoyed by the jury, which cannot be recreated in this Court. As in Hillier their verdict reveals that the jury must have rejected Mr Di Maria's evidence.
210In my judgment, the rejection of Mr Di Maria's evidence is not a circumstance, whether taken alone, or in conjunction with all the other circumstances, from which it was open to the jury to draw the inference that the appellants went to the deceased's home armed. As Hoeben JA has pointed out in [94], all parties at the trial, from opening to verdict, proceeded on the basis that this was an indispensable intermediate fact required to be proved by the Crown to the jury's satisfaction beyond reasonable doubt before the jury could convict of murder. Moreover, the conclusions expressed by Hoeben JA at [150] - [152] (with the exception perhaps of the third bullet-point at the end of [150]) do not depend upon an acceptance of Mr Di Maria's truthfulness, and are not invalidated by the assumption that the jury rejected his evidence. Putting the third bullet-point to one side makes no difference.
211Having reviewed the evidence myself, and having considered Hoeben JA's reasons, I doubt whether each accused was guilty of the crime of murder with which he was charged. In my judgment, this doubt is not capable of having been resolved at trial by the jury's advantage in seeing and hearing the evidence either of Mr Di Maria, or of all of the witnesses.
212As the High Court of Australia has recently observed, [t]he criminal standard of proof is a designedly exacting standard: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at 1096 [48]. In my judgment, considering the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that either accused was guilty of murder.
213In my judgment, there [is] a significant possibility that an innocent person has been convicted (M v R at 494) in each case. Accordingly, in my view, this Court is bound to act and to set aside the verdicts.
214For the reasons given by Hoeben JA I am not satisfied beyond reasonable doubt that the proviso to s 6(1) of the Criminal Appeal Act is engaged and accordingly, like Hoeben JA, as I have said, I would quash the conviction and direct a judgment and verdict of acquittal be entered in each case (s6(2) Criminal Appeal Act).
215Before leaving Ground 1 there is another matter about which I wish to say something. Perhaps in tacit recognition of the difficulties facing the Crown, learned counsel who appeared on the appeal sought to raise a new point. Properly, she acknowledged that this is a different basis than that on which the Crown case was run (Crown submissions page 9 [27] - 10 [30]). The new point was described in the following terms:
...it is submitted that there was evidence in the Crown case that was capable of supporting a conviction for felony murder on the basis that the appellants armed themselves once in the laundry of the deceased's home from the cache of weapons in the cavity wall, which they had clearly substantially demolished at the time of the confrontation with the deceased.
It was not necessary for the Crown to prove that an intention to commit an armed robbery was present at the time they entered the premises. Such an intention could have been formed at the time they located the guns in the cavity wall and when they realised the deceased was in fact at home.
216As McHugh J put it in Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at 875 [44] it is an elementary rule of law that a party is bound by the conduct of his or her case. The rule is not absolute, but the circumstances justifying an exception must be most exceptional: University of Wollongong v Metwally [No. 2] [1985] HCA 28; 59 ALJR 481 at 483.
217In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, the Court said:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. (Emphasis added)
218This rule applies equally to criminal cases: Crampton v The Queen [2000] HCA 60; 206 CLR 161 at 171 [12] - 173 [19] per Gleeson CJ; and Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at 218 [147] - [148] per Kirby J. The application of the elementary rule, and it's exceptions, to criminal appeals is given effect to by rule 4 Criminal Appeal Rules, which, as is well known, is in the following terms:
No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
219During oral argument, Hoeben JA, as presiding judge, expressed the firm view that the Crown should be restricted to the way the Crown put the case at trial (23.35T; 2.5 - 25T; 26.35T). I agree that the Crown should not be given leave to raise this point for the first time on appeal.
220At trial, in his closing address, the learned Crown prosecutor said (714.45T):
As I indicated to you right from the start of my address, the Crown must prove beyond reasonable doubt that one of [the accused] had that firearm at the time they went to the house.
221The learned trial judge directed the jury in the following terms (summing up page 12):
What does it mean to say that the Crown must prove the elements or the ingredients of an offence beyond reasonable doubt. Well, it is important that you understand that the Crown does not have to prove every single fact that might be in dispute in this trial, with one very important exception. And that one very important exception is whether one of the accused was, to the knowledge of the other, armed with a firearm when they went to the deceased's house. That is what, in the law, we call an essential intermediate fact. Because of the way in which this trial has been run, the Crown must prove that essential intermediate fact beyond reasonable doubt, otherwise it cannot prove the offence of murder in the way that it has mounted it's case. (Emphasis added)
222During a short break in her Honour's summing up taken for the jury's benefit, they sent a note (MFI #20) which read:
If the accused went to the property unarmed but with the knowledge that the guns were there and an intention to arm themselves; is this the same by law as bring the gun with them?
As counsel acknowledges on appeal, the question raised an issue similar to, but not identical with, the new point that the Crown wishes to raise. The learned trial judge took the views of counsel. All, and in particular the Crown prosecutor, agreed that the jury should be dissuaded from following that line because it amounted to speculation having regard to the way the Crown put its case.
223With the concurrence of all counsel, her Honour provided the following answer to the jury's question:
The Crown case has been put squarely on the basis that the accused went to the premises armed; that they went there with a gun, so there is no other basis upon which you can consider the Crown case.
As I said, the Crown has to prove its case and prove it beyond reasonable doubt and the basis upon which your question is premised amounts to speculation. It's not the way in which the Crown case has been run. So, that is really a question that does not need to be answered in the context of this particular trial.
224Before us, the Crown sought to rely upon this new point in one of three ways: first, it was said to be a circumstance that would lead the court to find that the verdict was not unreasonable; alternatively, it was put that in the light of it that if the court was otherwise of the view that the verdict was unreasonable, there should be a new trial restricted to a charge of felony murder on the new basis; or, thirdly, an alternative charge of manslaughter by unlawful and dangerous act should be the subject of a re-trial, if there was room for doubt as to the foundational crime.
225In my judgment, in all the circumstances of this case, leave should not be granted to raise this new point. It runs directly counter to the way the case was conducted by the prosecution at trial; the material I have cited demonstrates that the decision to confine the case was deliberately made by the Crown. Particularly having regard to the obligations of objectivity and fairness owed by prosecutors, the Crown ought not be permitted to resile from its considered position now. The question sought to be raised is a purely factual one, not involving any point of law. And the Crown has not demonstrated that there is no possibility that the new point could have been countered at the trial by evidence or argument, had it been raised; and I can think of no other basis upon which it could be said in the present case that there are most exceptional circumstances justifying a prosecution raising an entirely new case for the first time on appeal.
226Returning to [194] - [198] of Hoeben JA's judgment, I would prefer to reserve my position. His Honour has exposed conflicting lines of authority in this Court about whether s.137 Evidence Act 1995 imposes a positive duty on a trial judge to exclude evidence of a type caught by it whether or not objection is taken. As his Honour points out, strictly, this aspect does not arise for the reasons expressed by his Honour at [192] - [193]. And, as the differences were not identified by counsel nor addressed by them, I would prefer to leave the resolution of the question to an appropriate case where the Court has had the benefit of full argument.
227BUTTON J: I respectfully agree with Hoeben JA about grounds two to four, except for the following. I prefer to adopt the approach of Campbell J of not seeking to resolve the question of the circumstances in which a trial judge should exercise the discretion to exclude evidence pursuant to s 137 of the Evidence Act 1995 in the absence of an application to do so. I adopt that approach for the reasons given by Campbell J.
228Turning to the disposition of the matter, upholding the appeals with regard to grounds two and three would, in each case, lead to an order for a new trial.
229As for ground one, I also agree with Hoeben JA with regard to its disposition. I respectfully agree with Hoeben JA about the applicable legal principles and the test to be applied by this Court. I gratefully adopt the conspectus of the evidence and the course of the trial in the judgement of his Honour. However, my analysis of the evidence that leads to the ultimate conclusion is slightly different. Because my judgment rests on the foundations provided by Hoeben JA, I can be brief.