Regina v CORNELISSEN, R v SUTTON

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0072 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2527 2004/2465

JAMES J HIDDEN J BELL J

Regina v Shaun Andrew CORNELISSEN Regina v Reginald Jeffrey SUTTON Judgment 1 JAMES J: Shaun Andrew Cornelissen and Reginald Jeffrey Sutton appealed against their convictions, after a joint trial in the District Court before his Honour Judge Twigg and a jury, on a charge of the manslaughter of a man named Tony James Byrne on 2 August 2001 at Parkes. 2 Judge Twigg sentenced Cornelissen to a term of imprisonment of three years, with a non-parole period of eighteen months, commencing on 2 October 2003. His Honour sentenced Sutton to a term of imprisonment of two years with a non-parole period of one year, also commencing on 2 October 2003. Sutton was released on parole at the expiration of the non-parole period of his sentence on 1 October 2004. If his appeal against his conviction is dismissed, each of the appellants applies for leave to appeal against the sentence passed on him by Judge Twigg.

CROWN CASE AT THE TRIAL 3 Many of the Crown witnesses were related in some way to other Crown witnesses or to one of the appellants or to the deceased and, before summarising some of the evidence, it is convenient to set out these relationships. 4 A witness whose name at the time of the trial was Diane Cornelissen had previously been married to a man named Tom Byrne, by whom she had five children including Tanya Byrne (a witness at the trial), Tony Byrne (the deceased) and Monique Byrne (a witness at the trial). 5 A man named Chris Cornelissen was the father, by a woman referred to at the trial simply as Anna, of two children, Shaun Cornelissen (one of the appellants) and Tammy Cornelissen (a witness at the trial). In August 2001 Tammy Cornelissen was in a relationship with the appellant Sutton. Chris Cornelissen was also the father, by a woman named Kerry Troy, of Louise Cornelissen (a witness at the trial). 6 In 1982 Chris Cornelissen and Diane were married. After their marriage Diane's five children by Tom Byrne and Chris Cornelissen's two children by Anna lived with them in the same household. There were no children of the marriage of Chris and Diane Cornelissen. 7 The appellant Sutton is the son of a man named Reginald Sutton and Kerry Troy. 8 The witnesses in the Crown case included Monique Byrne and Tanya Byrne, Tammy Cornelissen and Louise Cornelissen and Diane Cornelissen. A woman named Jade Coghlan, who was the de facto wife of the deceased, was also a Crown witness. Other witnesses in the Crown case included Simon Monkerud and Katrina Whitney, who were in a relationship with each other but who do not appear to have been related to any of the other witnesses or to either of the appellants. There were two medical witnesses in the Crown case, Dr Sugo, a pathologist who performed a post-mortem examination of the deceased's body, and Dr Rodriguez, a neuropathologist, who gave evidence about the mechanisms by which the deceased might have sustained his injuries. 9 The Crown case can, very broadly, be stated as follows. 10 On 2 August 2001 the appellant Cornelissen became aware, through overhearing part of a conversation between his sisters Tammy and Louise, that Tammy alleged that she had been sexually abused as a child by two of Diane's sons by Tom Byrne. Cornelissen concluded that one of those sons would have been the deceased Tony Byrne. 11 Cornelissen asked Sutton to accompany him and on the evening of 2 August 2001 the two appellants went to the house of the deceased and his de facto wife Jade Coghlan. On the first occasion the appellants came to the house, the deceased was not at home and the appellants left. When the appellants returned shortly afterwards, the deceased was at home. Also present in the house were Jade Coghlan, Monique Byrne, Simon Monkerud and Katrina Whitney. 12 After being told by Jade Coghlan that the two appellants had come to the house, the deceased went to the front door of the house. There was a physical altercation between the deceased and Cornelissen. 13 A loud noise was heard by the four people who were inside the house and they came to the front door. The deceased was then lying on the ground in the front yard. The deceased got to his feet but was obviously distressed. Cornelissen punched the deceased and the deceased collapsed. He died shortly afterwards. The punch had caused a tear in one of the blood vessels supplying blood to his brain and this tear had given rise to a subarachnoid haemorrhage. 14 On the night of 2 August 2001 the two appellants went to the police station. Sutton was interviewed in an electronically recorded interview, which commenced shortly after midnight, but Cornelissen declined to be interviewed. 15 The Crown case against Cornelissen was that he had punched the deceased, thereby causing the death of the deceased, and that he was guilty of manslaughter by an unlawful and dangerous act. The Crown case against Sutton was that he was also guilty of manslaughter, either as a party to a joint enterprise with Cornelissen in the carrying out of which Cornelissen had punched the deceased or as a principal in the second degree, that is as a person, who, being present, had knowingly and intentionally aided and abetted Cornelissen. 16 It is useful at this stage to summarise the evidence of the four witnesses who were inside the house concerning what they said happened after they all heard a loud noise. 17 Jade Coghlan said that when she heard a loud noise she made a telephone call to the police, before following the other three persons to the front door of the house. 18 Jade Coghlan had given evidence that, before the deceased had gone to the front door to meet the appellants, he had told her:- "I don't want any trouble at the house. I will tell them to f - off and if there is any trouble just call the police". 19 In cross-examination she agreed that she had not told the police investigating the deceased's death that the deceased had told her this, until the day before she gave evidence at the trial. 20 While Jade Coghlan was still talking to the police on the telephone on the evening of 2 August 2001, she looked out the front door and saw the deceased lying on the lawn on his back. She called out, asking whether an ambulance was needed and Monique Byrne yelled that something was wrong and that the deceased's heartbeat was very faint. Jade Coghlan told the police on the telephone to ring an ambulance. 21 Jade Coghlan ran into the front yard of the house and put her hand on the deceased's chest. At first his heart was beating very fast but then it stopped. 22 Monique Byrne gave evidence that, after hearing a loud noise coming from out in the front yard of the house, she ran to the front door. She was just behind Simon Monkerud. She gave the following further evidence:- "I seen my brother on the ground and Jeff Sutton on one side and Shaun Cornelissen on the other". (T p138 lines 47-48) . . . "Simon Monkerud went to get Shaun off and I tried to get Jeff away from Tony." (T p140 lines 33-34) . . . "I was from behind him (Sutton) and I was trying to pull him away from Tony". (T p140 lines 45-46) . . . "I yelled and swore at him." (T p140 line 50) 23 Monique Byrne eventually pulled Sutton away from the deceased and Simon Monkerud eventually got Cornelissen away from the deceased. 24 Monique Byrne's evidence continued as follows:- "Q. After you'd seen Shaun pulled off and you've pulled Jeff off, did Tony do anything? A. Tony was still laying on the ground and that's when Jeff threw his arms up in the air and said, 'I didn't do a effing thing' and just started laughing. Q. So Jeff's thrown his arms up in the air, said, 'I didn't do - ', did he say - I'm sorry to be appearing to make this difficult, did he say 'effing thing'. You can say it? A. 'I didn't do a fucking thing'. Q. I think you said he started to laugh? A. Yes. Q. After that happened did anything happen to Tony or did Tony do anything? A. No, because the next -when I saw that Tony was standing again and that's when I had my back turned and I was answering back to Jade. Q. When you say you were answering back to Jade, did you hear - where was Jade? A. At the front door. Q. When you said 'answering back' did Jade say anything to you that caused you to answer back? A. She had said, 'Do we need an ambulance?' or, 'Call an ambulance' and I said, 'Yes, we need an ambulance'. Q. So after you said, 'Yes, we need an ambulance', did Tony do anything then? A. When I seen, out of the corner of my eye, Tony was standing and he had his arms up in the air and he was swaying and he didn't look right. HIS HONOUR: The witness has two hands loosely held out and upwards rolling from side to side. At the same time she is rolling her head from side to side. CROWN PROSECUTOR: Q. When you say 'didn't look right', can you expand on that? A. It's, I suppose, if you get knocked out and you try to get up real quick. He was staggery" (T p141 lines 8-51) 25 Monique Byrne gave evidence that when the deceased had got up he did not appear to her to be swinging punches. By the time she turned around again after speaking to Jade, "Tony was laid back out again on the ground". She heard Cornelissen say something to the effect "He deserved everything he got". 26 Simon Monkerud gave evidence that after he heard a bang, he ran to the front door and outside the house. He gave the following further evidence:- "I seen Tony Byrne laying on the ground, Shaun and Jeff Sutton over him." (T p186 lines 21-22) . . . "Q. Did you see if the accused Sutton was doing anything to Tony? A. No". (T p186 - lines 40-42) . . . "I just yelled out, 'Cut it out'". (T p186 - line 46) "Q. When you yelled out 'cut it out', did anyone do anything, any of the three people? A. Yeah, Jeff walked straight towards me and Shaun was standing near Tony while Tony was on the ground". (T p186 - lines 52-55) "Q. Did at any time Tony get off the ground? A. Yes, after I've told them to stop it. Q. When you told them to stop it, did Shaun Cornelissen do anything? A. No. he just stood there. Q. You said you saw Tony get up. Is that correct? A. Yes. Q. When Tony got up what did Tony do? A. Took his jumper off and staggered towards Shaun. (T p187 - lines 8-19) 27 Simon Monkerud gave evidence that he saw the deceased throw a couple of punches and saw Cornelissen throw punches but he did not see any of the punches from either of them strike the other:- "After a couple of seconds he (the deceased) just hit the ground. " (T p187 - line 58) 28 Simon Monkerud gave evidence that Sutton was "about 2.1 metres away from where the fight was". Sutton did not say anything. After the deceased went to the ground, Cornelissen stood over the deceased and said "He deserves what he's got". 29 In cross-examination Simon Monkerud agreed that in the statement he had made to police he had said that, when he first walked out of the house, he had seen the deceased and Cornelissen on the ground, that he was unsure which of them was on top and that he had seen Sutton pulling the deceased's shirt sideways. In cross-examination Simon Monkerud said that he had only remembered the deceased taking his jumper off, when he was actually giving his evidence at the trial. 30 Katrina Whitney said that after she heard a bang, she had run to the front of the house. Simon Monkerud and Monique Byrne were in front of her and to some extent blocked her view. She gave the following evidence:- "Q. Just tell the Court what you were able to see when you came out the front door? A. When I came out the front door I seen Monique and Simon on either side of Jeff and Shaun and Tony. Q. So now where was Tony? A. Getting up from the ground". (T p216 lines 52-58) 31 Katrina Whitney heard Simon Monkerud yelling "cut it out" and Monique Byrne saying "get off him". At the time Monique Byrne said "get off him" Monique Byrne was trying to push Sutton away from the deceased. "Q. What did you see happen next? A. Tony got up. Q. Did he do anything? A. Took his jumper off, he was staggering at that stage. Q. When you say-- A. Like he was dizzy. Q. Can you just keep your voice up. You said Tony was staggering or like he was dizzy, did you see Shaun do anything? A. He was - Tony was - he took his jumper off. He was dizzy, he was trying to swing some punches at Shaun and then Shaun swung one back. Q. After Shaun swung one back did you see anything happen to Tony? A. He fell to the ground. Q. Did you actually see whether a punch you say Shaun swung, did you see whether it hit Tony? A. No, because Simon was in my view". (T p 217 lines 35-57) 32 Katrina Whitney heard Cornelissen say "that will do him, he got what he deserved".

THE DEFENCE CASE OF THE APPELLANT CORNELISSEN AT THE TRIAL 33 The appellant Cornelissen gave evidence at the trial. The evidence he gave included the following evidence. 34 On 2 August 2001 he was at the house of his half-sister Louise. He overheard part of a conversation between Louise and his sister Tammy. Louise said "they done these things to you. You should do something about it". Cornelissen's evidence continued:- "I overheard them (Louise and Tammy) say these things that have happened to you when you were younger. It wasn't very hard to put two and two together. We had two older brothers in the house at the time". (T p379 line 58 - p380 line 3). 35 Cornelissen took his wife and Tammy back to Tammy's house. Sutton was at Tammy's house. 36 Cornelissen decided to go and see the deceased and ask him about the allegations. Cornelissen asked Sutton if he would come for a drive with Cornelissen and Sutton agreed. Cornelissen's evidence continued:- "Jeffrey asked me, 'where are you going?' I said, 'I'm going to see my brother, Tony'. He said, 'what for?' I said, 'I need to ask him a few questions and clear a few things up'". (T p380 lines 47-50) 37 Cornelissen and Sutton travelled by car to the deceased's house and parked at the front of the house. Cornelissen knocked on the door of the house and had a short conversation with Jade Coghlan. He was told by Jade Coghlan that the deceased had gone for a drive but that he should not be too long. The two appellants left. 38 The appellants returned shortly afterwards. When they returned Cornelissen parked the car some distance away from the house. Cornelissen said in evidence:- "I said to Jeff, 'I don't know how Tony is going to react to what I have to ask him. I don't want him to do anything to my car' because I'd just purchased the car at the time". (T p382 lines 18-21) 39 Cornelissen knocked on the front door. The deceased came to the door, opened the door and came outside the house. Cornelissen gave the following further evidence:- "I said to Tony, 'Is it true these things I've heard about you and Garry doing to Tammy when she was younger?' (T p383 line 43-44 ) . . . "He (the deceased) took two steps down the stairs and pushed me into the chest" (T p383 lines 56-57). 40 Cornelissen was pushed backwards but remained on his feet. He was then asked what happened next. He said:- "Both (the appellant Cornelissen and the deceased) turned at a 90 degree angle facing each other. He had his arms up, I had my arms up, there was a couple of punches thrown. One struck me across the tip of the nose". (T p384 lines 45-47) . . . "Q. "Who threw the first punch in that series of blows? A. Tony did. Q. Why did you punch him in return? A. Defending myself". (T p384 lines 52-57) 41 The appellant gave evidence that, after he was struck on the nose:- ".. we were still standing in the position, we locked arms, had a bit of a wrestle while we were standing up. Tony got the better of me. I went straight down on to the ground on my back. He was on his knees at that stage, above me". (T p385 lines 32-36) . . . "I recall that Tony was being pulled off by Jeff. I seen Jeff's feet standing next to me as I was laying on the ground." (T p386 lines 5-7) 42 At that stage people came running out of the house and the appellant Cornelissen and the deceased stood up. The appellant's evidence continued:- "Q. What was the next thing that happened? A. Tony came at me with a couple of more punches. Q. When you say came at you, how did he come at you? A. Walked towards me with his fists in the air, swung one, two punches at me. Q. What happened to those punches? A. They didn't connect, I was backing away at the time. I was walking backwards. Q. Then what happened? A. We turned and faced the road. I was standing in the middle of the yard and Tony - I wouldn't call it a run, but he came straight towards me anyway. Q. And was he doing anything as he did that? A. Yes, he had his arms in the air as he came towards me, fists in the air. Q. At that point, what was in your mind as he came towards you on that occasion? A. Self preservation, defending myself. Q. What did you do? A. Ducked to the side as he threw a punch. Q. Which side did you duck to? A. To my left-hand side. Q. And? A. And I threw a punch as well". (T p 386 line 53 - 387 line 26) 43 The appellant's evidence continued:- "Q.…when you swung that right hand, was your fist opened or closed? A. Closed. Q. Did you feel it strike anything? A. Yes. Q. Did you see what it struck? A. No. Q. What was in your mind when you struck that blow? A. Just defending myself. Q. What happened when you looked up? A. I seen Tony take a couple of steps back and he fell on to his back and he was laying there. Q. On his back? A. Yes. Q. How did you feel about that? A. Shocked, upset. Q. What did you do? A. I walked over and looked down at him on the ground. Q, Did you say anything? A. Yes. Q. What did you say? A. I said, 'He's had enough' and 'he deserved that'". (T p387 line 52 - p388 line 23)

THE DEFENCE CASE OF THE APPELLANT SUTTON AT THE TRIAL 44 The appellant Sutton did not give evidence at the trial. However, the tape recording of his electronically recorded interview on the night of 2-3 August 2001 was admitted into evidence. 45 Sutton had attended the police station at about 10 pm on 2 August 2001 with Cornelissen (question and answer 24). He had been advised by an officer of the Aboriginal Legal Service not to say anything but had told police that he wanted to give his version of what had happened (question and answer 53). He had told police that "I'm only a witness" (question and answer 61), a witness for Cornelissen (question and answer 72). 46 In his answer to question 74 Sutton gave a narrative account of what he said had happened. His answer was as follows:- "Well, we just pulled up over there and Shaun, Shaun….. and he wasn't there at this time. And then we, we've then left and come back, it was only, what, 10 minutes or something. We parked up on the, I'm not sure Medlyn Street just there, parked up near the corner there, 'cause we didn't want to take his car down near his place because reckoned he might get into it, or, I don't know, smash it, or kick it, or something like, I don't know. And we walked down there and Shaun's gone up to the door while I waited, I was out there with …. And, yeah, he just got Tony to come to the door and Tony's come out the front and had a swing at Shaun and that's when I come over and, yeah, they've Shaun's got, sorry, Tony's got Shaun on the ground and he was on top of him punchin' him, so I just, I grabbed, grabbed Tony by the back of the jumper and I was pullin' him off and that's when people come runnin' out of the house, like sayin' 'Stop it and stop it', and that. And then, yeah, got him off, he was standin' up and then Shaun's, Shaun got up and then he just went for Shaun and Shaun punched him and I just thought he knocked him out and we've walked off. That's all that's happened". 47 When asked what had been the purpose of going to see the deceased, Sutton replied "I didn't have no purpose, mate, I was, was only there for Shaun. Shaun wanted me to go round there" (question and answer 85). 48 When asked why Cornelissen had gone to see the deceased, Sutton replied:- "He was workin' somethin' out with him, mate, they, they haven't been getting' on for a while, or somethin', just, just went down there to see him ". (answer to question 94 ) 49 When asked what had caused both of the appellants to go to the deceased's house, Sutton replied:- "Mate, Shaun just asked me to go round there with him, mate, like, he wanted to work somethin' out, that's what I just said, mate". (answer to question 102) 50 In his answer to question 123 Sutton gave another narrative account of what he said had happened:- " Yeah, And then he's, yeah, he's just walked out, mate, 'cause I was, he's just walked out and then fuckin', I don't know what was said, and then he's just, like, went at Shaun, hit Shaun and Shaun's hit back and he's just, I'm not sure if he's tackled or Shaun went to the ground after the hit or somethin', but then he was on top of him. So, I just ran over, mate, and just pullin' him off. They all seen me, I didn't, I didn't hit him or nothin'. I only just grabbed him like that there and I was just pullin' him off, pullin' him off him. And then they was all carryin' on like, like, 'stop it, stop it, stop it', like, and then he's, when he's let him up, but he's, Shaun's got up too after he'd, like, he got up first, 'cause he was on top, got up and then Shaun's got up and then he's just went for Shaun, like went at him. And then Shaun's just hit him, hit him on the, in the face area somewhere and then he's just fell back on the ground and just thought he was knocked out". 51 Sutton said that a punch by Cornelissen had been "only a little punch". 52 Question and answer 145 were as follows:- "Q. He didn't you didn't ask before you went around as to what, you know, what you're going to sort out here, what's.. ? A. No, Well, I just, I just, well, they're brothers, mate, I, well, it's not as if we was goin' round to some fellow he hated, or anything like that. I didn't think, like, he was goin' round there for trouble until like, Shaun said he'd park his car up on the corner, mate and like he though that, like if things didn't work out, mate, like, I don't know, he was gunna jump into his car or I don't know". 53 Sutton was aware of one, but only one, previous fight between Cornelissen and the deceased. 54 When asked how he felt about what he said had happened, Sutton said:- " ..because they were fightin', I just, I was glad that, well, not glad, just he'd be right, mate, I'm, I was just glad that Shaun didn't lose the fight, which I'm not glad at all now, at all. I was, that, gees I don't know what to say for that, mate. Like, I was glad that Shaun didn't lose the fight, but I wish that … didn't happen, it's makes me like, it makes me, like, I don't know how Shaun would be feelin', it's his brother". (answer 168) 55 Sutton said that all he had done was to try and grab the deceased off Cornelissen, "'cause he was on top of Shaun" (questions and answers 169, 170). 56 Sutton said that all he had done in the fight was to pull the deceased off Cornelissen and that he himself had no injuries. Monique Byrne had pulled Sutton back, when Sutton was attempting to pull the deceased off Cornelissen.

GROUNDS OF APPEAL 57 The grounds of appeal in Cornelissen's appeal against conviction are:- " 1. The trial judge erred in failing to direct the jury not to engage in tendency reasoning with respect to relationship evidence admitted in the prosecution case . 2. The trial judge erred in his directions regarding manslaughter . 3. The trial judge erred in his directions to the jury regarding the evidence of alleged admissions by the appellant . 4. The verdict was unreasonable ". 58 The grounds of appeal in Sutton's appeal against conviction are:- " 1. The trial judge erred by permitting the jury to consider the evidence of Tanya Byrne in the case against the appellant . 2. The trial judge erred in his directions to the jury as to the elements of manslaughter . 3. The trial judge erred in directing the jury as to a joint criminal enterprise . 4. The trial judge erred in failing to direct the jury not to engage in tendency reasoning with respect to relationship evidence admitted in the prosecution case . 5. The verdict was unreasonable" . 59 It is apparent that Cornelissen's first ground of appeal and Sutton's fourth ground of appeal are closely related and that Cornelissen's second ground of appeal and Sutton's second ground of appeal are closely related. Cornelissen's third ground of appeal and Sutton's first ground of appeal are also closely related. It is convenient to deal at the same time with the closely related grounds in the two appeals.

Ground 1 (Cornelissen) The trial judge erred in failing to direct the jury not to engage in tendency reasoning with respect to relationship evidence admitted in the prosecution case .

Ground 4 (Sutton) The trial judge erred in failing to direct the jury not to engage in tendency reasoning with respect to relationship evidence admitted in the prosecution case . 60 At the trial evidence was given of four previous occasions on which there had been physical violence between the deceased and the appellant Cornelissen. 61 Before any of this evidence was given, there was discussion between the trial judge and counsel concerning the admissibility of this evidence. According to the transcript the Crown prosecutor said:- "The Crown says that part of the relationship forms the evidence between the accused and the deceased". 62 It was not disputed on the hearing of this appeal that this part of the transcript is garbled and that what the Crown prosecutor had said was to the effect that, in the Crown's submission, the evidence formed part of the relationship between Cornelissen and the deceased. 63 Counsel for Cornelissen said that he did not object to the evidence being adduced and counsel for Sutton said that the evidence did not affect his client. 64 The witness Jade Coghlan then proceeded to give evidence about these four occasions. She said that at a barbeque at the home of Chris and Diane Cornelissen the appellant Shaun Cornelissen had headbutted and punched the deceased. The deceased's nose had been broken and he had sustained two black eyes. At a party to celebrate Chris Cornelissen's fiftieth birthday which was held at the Bogan Gate Hall, the appellant Cornelissen had headbutted the deceased. On an occasion in a caravan park where Monique Byrne was living, the appellant Cornelissen had grabbed the deceased around the throat and punched him. On an occasion at Cornelissen's flat in Parkes the deceased had made a remark about a compact disk which was being played and Cornelissen had pushed the deceased and punched him in the face. 65 Evidence was given by some other Crown witnesses about some of these incidents. 66 The appellant Cornelissen gave evidence about these four occasions. With regard to the incident in the caravan park, he said that the deceased had become very aggressive and that the two women Monique Byrne and Jade Coghlan had had a fight in which Jade Coghlan had been struck with a beer bottle. Cornelissen denied that he had had any fight with the deceased on this occasion. 67 Cornelissen gave evidence that at Chris Cornelissen's fiftieth birthday party it had been the deceased who had headbutted him and that he had not "touched" the deceased. At the barbeque at Chris and Diane Cornelissen's home the deceased had headbutted Cornelissen and Cornelissen had then punched the deceased. At Cornelissen's flat Cornelissen and the deceased had wrestled with each other, the wrestling having been initiated by the deceased. 68 In his closing address at the trial the Crown prosecutor made some references to this evidence. The Crown prosecutor submitted that when Cornelissen had given evidence about these four incidents he had tried to portray the deceased as having been the aggressor and himself as having been "passivist". The Crown prosecutor submitted that the jury should accept the evidence of Jade Coghlan in preference to the evidence of Cornelissen. 69 In his closing address at the trial counsel for Cornelissen submitted to the jury that they should dismiss the evidence about the previous "blues" between the deceased and Cornelissen, which counsel for Cornelissen described as evidence of the prior "relationship" between the deceased and Cornelissen, as being totally irrelevant to what had happened on 2 August 2001. 70 It was submitted on this appeal by counsel for Cornelissen that, evidence of the four previous incidents of physical violence having been admitted as relationship evidence and not as tendency evidence, the evidence could not be used by the jury as tendency evidence (Evidence Act s 95) and, as there was a real risk that the jury, if the jury accepted Jade Coghlan's evidence, might use the evidence as showing a tendency on the part of Cornelissen to be physically violent to the deceased, it was incumbent on the trial judge to give the jury a direction that the evidence could not be used for that purpose. The trial judge had not given the jury any such direction. 71 It was conceded by counsel for Cornelissen on the appeal that no such direction had been asked for at the trial and, therefore, leave under r 4 of the Criminal Appeal Rules was required in order for the appellant Cornelissen to rely on this ground of appeal. However, it was submitted, leave under r 4 should be granted, because there would have been no forensic reason for counsel for Cornelissen at the trial not asking for such a direction. In his final address counsel for Cornelissen had not sought to derive any advantage from the version of the four incidents his client had given and had submitted to the jury that they should dismiss the evidence about the four incidents as being totally irrelevant. 72 In my opinion, it was unfortunate that evidence about the four incidents was ever admitted. It was not necessary to establish what had been the relationship between Cornelissen and the deceased, in order to be able to understand and put in an intelligible context what the Crown alleged had happened on the night of 2 August 2001. On the Crown case Cornelissen had acted on 2 August 2001 as the Crown alleged he had, because on that day he had become aware, for the first time, of an allegation that the deceased had sexually abused his sister, while they were children. 73 In my opinion, the submissions of counsel for the appellant Cornelissen should be accepted. The evidence about what happened on the four occasions was admitted as relationship evidence only, there was a real risk that the evidence might be used as evidence of a tendency on the part of Cornelissen to be physically violent to the deceased and the trial judge should have given a direction that the evidence could not be used for that purpose. It is difficult to see any forensic reason why counsel for Cornelissen at the trial would have deliberately refrained from seeking such a direction. 74 I would grant leave under r 4 and I would uphold Cornelissen's first ground of appeal. 75 As the appellant Sutton's liability, whether as a party to a joint enterprise with Cornelissen or as a principal in the second degree, is dependent on what was Cornelissen's conduct towards the deceased on 2 August 2001, leave should be granted to Sutton to rely on his fourth ground of appeal and this ground of appeal should also be upheld. 76 Ground 2 (Cornelissen) The trial judge erred in his directions regarding manslaughter .

Ground 2 (Sutton) The learned trial judge erred in his directions to the jury as to the elements of manslaughter . 77 As I have already indicated, the Crown case that the appellant Cornelissen had committed the crime of manslaughter was that, in the second part of the physical altercation between Cornelissen and the deceased, Cornelissen had struck the deceased with a punch, otherwise than in self-defence, thereby doing an unlawful and dangerous act, which had caused the deceased's death. 78 Quite apart from whether the Crown had proved that Cornelissen had not acted in self-defence, there was a strongly contested issue at the trial as to whether the Crown had proved that the act of punching the deceased had been a "dangerous" act. 79 In his summing-up the trial judge gave the jury the following directions about manslaughter:- "To establish that both accused are guilty of manslaughter it is necessary for the prosecution to prove beyond reasonable doubt all of the following elements: 1. that Shaun Cornelissen and Jeff Sutton entered into a joint criminal enterprise to assault Tony Byrne; 2. that the accused, Shaun Cornelissen, committed an unlawful and dangerous act carrying with it an appreciable risk of serious injury by assaulting Tony James Byrne; 3. causing the death of Tony James Byrne; and 4. Shaun Cornelissen committed the assault as an incident in the carrying out of the joint criminal enterprise. Manslaughter is committed where the accused causes the death of a person by an act which is both unlawful and dangerous. It is not necessary that the accused was aware that the act was dangerous provided that a reasonable person would have appreciated that the act was one which, in the circumstances, exposed others to risk of serious injury, that is an unlawful and dangerous act carrying with it an appreciable risk of serious injury. In this case the act must be a breach of the criminal law. It is put by the prosecution that with an assault, the test of danger is objective. The only intent is an intent to commit an act which is unlawful and dangerous, that is to assault Tony Byrne. Each of the barristers sought to give you an example. May I give you this example of a dangerous act. Imagine two young persons at the end of a pier over water and they are tossing a box and passing one to the other like a ball. One misses the catch and it goes over the side and there is a person swimming underneath and the box hits the swimmer and kills him. What the two young persons were doing was a dangerous act. They had no idea that there was a swimmer underneath. It amounts to manslaughter because they were committing a dangerous act within the terminology that I mentioned to you, where there was a risk of serious injury. In this instance the prosecution puts to you that there was a joint criminal enterprise." 80 It was submitted by counsel for each appellant that the directions given by his Honour were erroneous in certain respects. 81 In directing the jury about whether an act was dangerous, his Honour said that an act was dangerous, if a reasonable person would have appreciated that the act exposed others to an appreciable risk of serious injury. 82 This direction was obviously derived from a passage in the joint judgment of Mason CJ, Toohey J, Gaudron J and McHugh J in Wilson v The Queen (1991-1992) 174 CLR 313 at 334, where their Honours authoritatively stated that in a trial for manslaughter the jury should be directed to assess "whether a reasonable person in the accused's position would have realised that (in punching the deceased) he was exposing him to an appreciable risk of serious injury". However, in the directions his Honour gave in the present trial his Honour had omitted from the directions the need for the reasonable person to be placed "in the accused's position". 83 It was submitted that the omission was significant, because different witnesses at the trial had given different accounts of what they had observed in the confrontation between Cornelissen and the deceased. For example, some Crown witnesses had given evidence that, before he was struck the fatal blow, the deceased was staggering. In his evidence Cornelissen denied that the deceased was staggering. Because what was material was what was apparent to Cornelissen and not what a Crown witnesses might have observed, it was essential that the jury should have been directed that, in determining whether the Crown had proved that Cornelissen's act of punching was dangerous, they had to determine whether the Crown had proved that a reasonable person, in the position of Cornelissen, would have realised that in punching the deceased he was exposing him to an appreciable risk of serious injury. 84 In my opinion, counsel for Cornelissen's submissions should be accepted. No objection was taken at the trial to his Honour's directions but, as the omission was a significant omission in directing the jury about what the Crown had to prove to establish the offence charged, leave under r 4 should be granted and this ground of appeal should be allowed in both appeals. 85 It was further submitted by counsel for each appellant that the example given by the trial judge as being an example of a dangerous act was inapposite and positively misleading, in that it might have led the jury to take into account the outcome of Cornelissen's act, that is the death of the deceased, in deciding whether Cornelissen's act was dangerous. 86 On this appeal the Crown accepted that there were defects in the example given by the trial judge but submitted that better examples of dangerous acts had been given by counsel in their closing addresses and the Crown pointed out that elsewhere in the summing-up the trial judge had warned the jury against using hindsight. 87 In my opinion, the example given by his Honour was, with respect to his Honour, a poor one and could have been misleading. It is by no means clear on the brief facts postulated by his Honour that a reasonable person, in the position of the two persons passing the box between them, would have appreciated that the acts of passing the box carried an appreciable risk of serious injury to another person. One fact which was postulated by his Honour, that the persons passing the box had no idea that there was a swimmer underneath, might well militate against a finding that the acts of passing the box were dangerous according to the test stated in Wilson. I mention in passing that it is by no means apparent that the acts of passing the box would have been unlawful. 88 I would not have upheld this ground of appeal, merely on the basis that the example given by his Honour was inapposite and liable of itself to have been misleading, but the giving of such an example by his Honour strengthens my conclusion that this ground of appeal should be upheld. 89 It was further submitted by counsel for Cornelissen that the trial judge, after giving these directions of law about manslaughter, had failed to relate the directions to the evidence. Nowhere in the summing-up did the trial judge tell the jury in terms that they had to determine whether, applying the directions of law he had given them, they were satisfied beyond reasonable doubt that Cornelissen's act of punching the deceased, quite apart from whether it was done in self-defence, was a dangerous act. 90 In my opinion, it would have been preferable for the trial judge to have more explicitly related his directions of law about manslaughter to the evidence in the particular trial but I have concluded from a consideration of the summing-up as a whole that the jury would have realised that one of their tasks was to determine whether the Crown had proved beyond reasonable doubt that Cornelissen's act of punching the deceased had been a dangerous act. 91 There may have been other defects in the trial judge's directions but any such other defects were not the subject of argument on the hearing of the appeal

Ground 3 (Cornelissen) The trial judge erred in his directions to the jury regarding the evidence of alleged admissions by the appellant .

Ground 1 (Sutton) The trial judge erred by permitting the jury to consider the evidence of Tanya Byrne in the case against the appellant . 92 The evidence of alleged admissions referred to in Cornelissen's ground of appeal is the evidence of Tanya Byrne referred to in Sutton's ground of appeal. It is convenient first to consider Sutton's ground of appeal, which asserts that the evidence was inadmissible against him, before considering Cornelissen's ground of appeal, which concedes that the evidence was admissible against Cornelissen, but asserts that the trial judge erred in the directions he gave about the evidence. 93 Tanya Byrne, a sister of the deceased, was one of the last witnesses called in the Crown case. She gave evidence which was generally in accordance with what she had said in a statement she had made to police after the trial had commenced. 94 Tanya Byrne gave evidence that, after hearing of her brother's death, she had travelled to Parkes, where she had a conversation with the appellant Cornelissen, the appellant Sutton not being present. 95 In this conversation Cornelissen had said that, on the second occasion he and Sutton had gone to the deceased's house on the night of 2 August 2001: "Shaun said that they went there, Tony come out, he closed the door behind him, pulled it to. Shaun and Tony were talking and then Shaun hit him. Then they had a fight, Tony got the better of Shaun". (T p265 lines 34-37) . . . "Jeff kicked Tony in the guts and dragged him off Shaun and then the fight continued. I asked Shaun did he hit him with anything and he said no. I asked him did Jeff hit him with anything. He wouldn't answer me". (T p 265 lines 50-54) . . . "I asked him why he took Jeff. The first time he said he didn't know. Later I asked him again and he said he took Jeff in case Tony went off". (T p 266 lines 9-11) 96 Before this evidence was given at the trial by Tanya Byrne, there had been argument in the absence of the jury about its admissibility and particularly its admissibility against the appellant Sutton. Counsel for Sutton at the trial submitted that the evidence was inadmissible against Sutton and seriously prejudicial to him. The Crown prosecutor conceded that the evidence was not admissible against Sutton but submitted that any prejudice to Sutton from the admission of the evidence against Cornelissen could be cured by the giving of directions by the trial judge. The trial judge gave a judgment in which he held that the evidence was admissible against Cornelissen and that, so far as Sutton was concerned, he could overcome any prejudice to Sutton by directing the jury that they should put the evidence out of their minds (in considering the case against Sutton). In other words, his Honour held that the evidence was inadmissible against Sutton but that he could cure any prejudice to Sutton stemming from the admission of the evidence against Cornelissen by giving the jury appropriate directions. 97 After Tanya Byrne had given her evidence in chief, including her evidence of what she had been told by Cornelissen, she was cross-examined by counsel for Cornelissen but she was not cross-examined at all by counsel for Sutton. 98 Notwithstanding the trial judge's ruling that the evidence was inadmissible against Sutton, the Crown prosecutor in his final address, in making submissions in support of the Crown case against Sutton, said:- "You've heard the evidence of Tanya Byrne as to what was said by the accused to her. That being that Jeff raced in and kicked him in the guts. So he was getting support, the Crown says. An accessory, helping". (T p450 lines 14-18) 99 A little later in his address the Crown prosecutor said:- "You'd be quite entitled to accept that Sutton was an accessory because of what Cornelissen said to Tanya Byrne of kicking him in the guts". (T p451 lines 8-10) 100 Not only was what the Crown prosecutor said in his address a contravention of the ruling the trial judge had previously made but what the Crown prosecutor asserted that Tanya Byrne had said in her evidence went beyond the evidence she had actually given. It would appear that in the statement she had given to police Tanya Byrne had said that "Jeff raced in" immediately before she said that Sutton had kicked the deceased but in actually giving her evidence before the jury Tanya Byrne had omitted saying that Jeff had "raced in". 101 In counsel for Sutton's final address counsel told the jury that Tanya Byrne's evidence of what Cornelissen had said to her could not be evidence against Sutton. Counsel said, "it's got nothing to do with him". 102 During a break in the delivery by his Honour of his summing-up the Crown prosecutor said that the trial judge would have to give a warning pursuant to s 165 of the Evidence Act about Tanya Byrne's evidence, because it was, in effect, evidence by one co-accused (Cornelissen) against another co-accused (Sutton). 103 Counsel for Sutton submitted that Tanya Byrne's evidence was not admissible against Sutton. Counsel submitted:- "What another accused says to someone else, some time afterwards, in the absence of the co-accused, isn't admissible against him - it's admissible against Mr Cornelissen - and I'd ask your Honour to ask the jury to perform a mental gymnastics of excluding that evidence against Mr Sutton". 104 The trial judge thanked counsel for their submissions but gave no indication of what he proposed to say about the matter in the rest of the summing-up. 105 Later in the summing-up the trial judge said:- "Tanya Byrne has given evidence of what Cornelissen said about his involvement, and also what Cornelissen said to her, he being charged, as was Sutton at the time, with this event, concerning Sutton's involvement. Now, so far as what Cornelissen says, you have heard his version of it - and again, you have got to be satisfied beyond reasonable doubt- but it is a matter that you can take into account as an admission or a matter that is told to Tanya, but in considering its worth to you, consider the time lag, consider the circumstances in which she says it was given and the concrete evidence against. You may think, in those circumstances, that it is not such strong or reliable evidence. I want to warn you that in all of those circumstances you ought to consider carefully whether it is unreliable evidence, but in relation to what she says about Sutton's involvement - that is what Cornelissen told her was Sutton's involvement, this suggested 'kicking in the guts' - remember that this is from an accomplice (Cornelissen) - that is, someone like Sutton charged - and I must warn you that the evidence of an accomplice in situations like that might be so unreliable that you would put one side. I mean, we often hear, do we not, of accomplices giving evidence against one another because they want to protect their own selves. Well here you have an accomplice (Cornelissen) giving evidence, or rather Tanya telling us of what is supposedly said by Cornelissen concerning Sutton's involvement, and that you may consider to be so unreliable that you would put it one side, but I give you that direction because that is the likelihood, one might say, of what an accomplice might say in a situation where he is allegedly involved in a serious aspect of it". 106 Immediately after the trial judge had concluded his summing-up, counsel for Sutton said that the trial judge had not said in the summing-up that Tanya Byrne's evidence was not admissible against Sutton. The trial judge said that he had not said so, deliberately, and "I have ruled that it (Tanya Byrne's evidence) is admissible but I added that warning". 107 Counsel for Sutton referred the trial judge to s 83 of the Evidence Act. 108 The Crown prosecutor submitted that whether the evidence should be admitted was a matter for the exercise of a discretion by his Honour. 109 The trial judge held that s 83 of the Evidence Act was inapplicable and that "I allow the evidence and the direction from me to stand". In giving his ruling his Honour referred to s 165(1)(d) of the Evidence Act. In referring to s 165(1)(d) his Honour would appear not to have distinguished between first hand evidence given by an "accomplice" and hearsay evidence given by another witness of what an "accomplice" had said to that other witness. 110 On the hearing of this appeal counsel for the Crown conceded that Tanya Byrne's evidence was inadmissible against Sutton. Tanya Byrne's evidence was evidence of what one accused Cornelissen had said to her, in the absence of the other accused Sutton, long after any joint enterprise between Cornelissen and Sutton had ended, and was not admissible in the trial of Sutton. Counsel for Sutton at the trial was correct in referring his Honour to s 83 of the Evidence Act. 111 Before the evidence was given his Honour had made a correct ruling that the evidence would not be admissible in the trial of Sutton and, after Tanya Byrne had given her evidence in chief, counsel for Sutton at the trial did not cross-examine Tanya Byrne. 112 However, in contravention of the ruling the trial judge had made, the Crown prosecutor in his final address relied on the evidence of Tanya Byrne as supporting the Crown case against Sutton and misstated the evidence Tanya Byrne had actually given. 113 In his summing-up the trial judge in effect reversed his earlier ruling and by giving the jury a warning about Tanya Byrne's evidence conveyed to the jury that, although they would have to have regard to the warning, the evidence was admissible against Sutton. 114 Tanya Byrne's evidence was seriously prejudicial to Sutton. Tanya Byrne gave evidence that Cornelissen had said that Sutton had kicked the deceased "in the guts"; that when Tanya Byrne asked Cornelissen whether Sutton had hit the deceased "he (Cornelissen) wouldn't answer me" (which was capable of giving rise to an inference that Sutton had, in fact, hit the deceased); and that Cornelissen had said that he had taken Sutton with him "in case Tony went off". 115 Sutton's third ground of appeal must be upheld. 116 As regards Cornelissen's third ground of appeal, it was conceded on the appeal by counsel for Cornelissen that the evidence, although not admissible against Sutton, was admissible against Cornelissen. However, it was submitted, there was a danger that the warning the trial judge had given in his summing-up about the unreliability of Tanya Byrne's evidence against Sutton as being evidence of what she had been told by an "accomplice" (Cornelissen), might have been taken into account by the jury in assessing the evidence of Cornelissen generally. The trial judge should have guarded against this danger by giving the jury further directions but the trial judge had not done so. 117 I consider that the trial judge did err in the directions he gave about the evidence of Tanya Byrne. Of course, if his Honour had abided by the correct ruling he had earlier made that the evidence of Tanya Byrne was inadmissible against Sutton, there would have been no need for his Honour to give the directions of which complaint is now made. However, his Honour reversed that ruling and gave directions. In the directions the appellant Cornelissen should not have been referred to as an "accomplice", a word which is not used in the Evidence Act and which is calculated to convey to the jury that the trial judge considers that an accused person so described is indeed guilty (See R v Stewart (2001) 52 NSWLR 301 at par 126 per Howie J and at par 21 per Spigelman CJ). Furthermore, I accept that there was a danger that the directions given, in the absence of further directions, might have influenced the jury's assessment of Cornelissen's evidence generally. 118 I would uphold Cornelissen's third ground of appeal.

Ground 3 (Sutton) The learned trial judge erred in directing the jury as to a joint criminal enterprise . 119 As has already been indicated, the Crown did not allege at the trial that the accused Sutton had personally done any act causing the death of the deceased. On the Crown case the act causing the deceased's death had been done by the other accused Cornelissen. 120 The primary Crown case against Sutton was that he had been a party to a joint criminal enterprise with Cornelissen and that in the course of carrying out that criminal enterprise Cornelissen had thrown the punch which caused the death of the deceased and that, consequently, Sutton, as well as Cornelissen, was guilty of manslaughter. 121 Alternatively, the Crown said that Sutton was guilty of manslaughter as an accessory or principal in the second degree, as being a person who was present when the principal in the first degree Cornelissen did an unlawful and dangerous act causing the deceased's death and Sutton, knowing that Cornelissen was committing or about to commit such an act, aided and abetted Cornelissen. 122 The trial judge in his summing-up gave the jury directions both about what the Crown had to prove to establish Sutton's guilt as a party to a joint criminal enterprise and what the Crown had to prove to establish Sutton's guilt as being an accessory. 123 On this appeal it was submitted by counsel for Sutton that, as on the Crown case there was no doubt which of the two accused was the principal offender and no doubt that the other accused had been present when the principal offender struck the fatal blow, the present case (on the Crown allegations) was a classic case of a principal in the first degree and an accessory and there had been no need for the Crown to seek to rely on joint criminal enterprise, whether straightforward or extended. Reference was made to the judgment of Hunt J in R v Stokes and Difford (1990) 51 A Crim R 25. 124 It was further submitted by counsel for the appellant that, in any event, the evidentiary basis for there having been any joint criminal enterprise between the two accused was "tenuous". 125 It was not in issue at the trial that Cornelissen believed that his sister Tammy had alleged that she had been sexually abused as a child by the deceased and that it was this belief which had led Cornelissen to go to the deceased's house on 2 August 2001. The Crown alleged that the other accused Sutton had also become aware of the allegation of sexual abuse. However, Cornelissen when giving evidence at the trial denied that he had told Sutton about the allegation and Sutton, when he was interviewed on the night of 2-3 August 2001 repeatedly said that all Cornelissen had told him about the purpose of their joint visit to the deceased was that Cornelissen wanted to "work something out" with the deceased, without Cornelissen being any more explicit. The Crown submitted at the trial that, notwithstanding the assertions of both accused, the jury should infer that Cornelissen had told Sutton why Cornelissen wanted to visit the deceased. 126 In my opinion, the Crown case against Sutton could have been presented, without any disadvantage to the Crown, simply on the basis of accessorial liability and the introduction of a Crown case based on joint criminal enterprise led to complications in the summing-up. Nevertheless, I do not consider that, even in a trial where the Crown case against an accused could, without disadvantage to the Crown, have been limited to a case based on accessorial liability, the Crown is precluded, as a matter of law, from also seeking to rely on joint criminal enterprise and I do not read Hunt J's judgment in Stokes and Difford as saying anything to the contrary. I am also of the opinion that there was a sufficient basis to enable the Crown to seek to rely on joint criminal enterprise. 127 I would not uphold Sutton's third ground of appeal.

Ground 4 (Cornelissen) The verdict was unreasonable .

Ground 5 (Sutton) The verdict was unreasonable . 128 The principles to be applied by a Court of Criminal Appeal in deciding whether verdicts of guilty are unreasonable and cannot be supported having regard to the evidence have been stated in such cases as M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606 at 622-624 (52-59). The test to be applied is whether the Court of Criminal Appeal, after making its own independent assessment of the evidence, considers it was open to the jury to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict upon the whole of the evidence. "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" (M v The Queen per Mason CJ, Deane J, Dawson J and Toohey J at 493). 129 I will deal firstly with Cornelissen's ground of appeal. 130 It was clearly open to the jury to be satisfied beyond reasonable doubt that Cornelissen had punched the deceased and that the punch by Cornelissen had caused the death of the deceased. The issues on this ground of appeal are whether it was open to the jury to be satisfied beyond reasonable doubt that Cornelissen's punch was "dangerous" according to the test stated in Wilson and whether it was open to the jury to be satisfied beyond reasonable doubt that Cornelissen had not acted in self-defence. 131 With regard to these issues, it was submitted by the Crown inter alia that it would have been open to the jury to find that Cornelissen had a motive for being hostile to the deceased; that Cornelissen had decided to confront the deceased about the allegation that the deceased had sexually abused Cornelissen's sister; that, instead of going alone to the deceased's house, Cornelissen had taken Sutton with him, indicating that Cornelissen anticipated that there might be physical violence; that on the second visit to the deceased's house Cornelissen had parked his car some distance away from the house, so that the deceased could not damage the car; that in the first part of the physical altercation outside the house the deceased had gone to the ground, that when the deceased had got to his feet again he was staggering and obviously distressed, yet Cornelissen had punched him; and that after the deceased had been knocked down Cornelissen had shown no concern for the deceased and had expressed satisfaction with what he had done. 132 I have taken the Crown submissions into account but I have nevertheless concluded that the jury ought to have had a reasonable doubt, both as to whether the act of punching was dangerous and as to whether Cornelissen had not acted in self-defence. 133 As regards whether it was open to the jury to be satisfied beyond reasonable doubt that the act of punching was dangerous, it is noteworthy that none of the Crown witnesses gave evidence of having actually seen Cornelissen throw a punch which connected with the deceased. Jade Coghlan was still inside the house, when the punch knocking the deceased down was thrown. Monique Byrne, although outside the house, had her back turned, talking to Jade Coghlan, at the time when the punch was thrown. By the time Monique Byrne had looked around, the deceased was on the ground. Simon Monkerud saw Cornelissen throw punches but he did not see any of the punches strike the deceased. Katrina Whitney saw Cornelissen throw one punch but did not see whether it hit the deceased. 134 It would not have been open to the jury to infer from the deceased's injuries and death that the punch had necessarily been a heavy punch. In his report which was admitted into evidence Dr Rodriguez, the neuropathologist called by the Crown, said:- " Traumatic subarachnoid haemorrhage most commonly results from a blow to the side or the back of the neck, resulting in rotation of the head on the neck. The direction of the blow and subsequent rotation of the head appears to be more important than the force of the punch and relatively minor blows have resulted in this injury. At least one case of basal subarachnoid haemorrhage has been described where the victim moved his head to avoid a blow. It has been suggested that this injury may be more common if the victim's reflexes are impaired as may be the case if the victim was affected by alcohol or was 'groggy'. While this may be true in many cases, it is by no means a universal finding". 135 In the present case the deceased had been drinking alcohol and had a moderate blood alcohol reading. 136 In his evidence Cornelissen said that he had thrown only a single punch. Sutton, when he was interviewed by police, said that the punch by Cornelissen was "only a little punch". 137 As regards whether it was open to the jury to be satisfied beyond reasonable doubt that Cornelissen had not acted in self-defence, Simon Monkerud gave evidence that the deceased, after getting up from the ground, had taken his jumper off, moved towards Cornelissen and thrown a couple of punches. Katrina Whitney gave evidence that the deceased had taken his jumper off and had tried to swing some punches at Cornelissen and that Cornelissen had then swung one punch back. Cornelissen himself gave evidence that the deceased had advanced towards him, throwing punches and that he had thrown a single punch in self-defence. 138 Even if the deceased was observed by some of the Crown witnesses to be staggering, this might not have been apparent to Cornelissen and did not incapacitate the deceased from advancing towards Cornelissen and throwing punches. 139 In my opinion, it was not open to the jury to be satisfied beyond reasonable doubt that Cornelissen did not believe that it was necessary to defend himself or that Cornelissen's conduct in throwing a single punch, which was not necessarily a forceful punch, was not a reasonable response in the circumstances as perceived by Cornelissen. 140 I would uphold Cornelissen's fourth ground of appeal. 141 If Cornelissen's fourth ground of appeal is upheld, then Sutton's fifth ground of appeal must be upheld. As the trial judge correctly told the jury in his summing-up, if Cornelissen was not found guilty, then Sutton could not be found guilty, as Sutton's criminal liability depended on Cornelissen being criminally liable. 142 There are further reasons why a verdict of guilty against Sutton was unreasonable and cannot be supported having regard to the evidence. 143 As regards Sutton being liable as a party to a joint enterprise with Cornelissen to seriously assault the deceased, the jury, on the basis of the evidence of both Cornelissen and Sutton and particularly the answers given by Sutton when he was interviewed on 3 August 2001, ought to have had a reasonable doubt about whether there was any such joint criminal enterprise between Cornelissen and Sutton. 144 As regards accessorial liability, although Sutton was undoubtedly present, the jury ought, on the Crown witnesses' own evidence, to have had a reasonable doubt about whether Sutton was aiding and abetting Cornelissen when Cornelissen threw the fatal punch. Monique Byrne gave evidence that she saw the deceased lying on the ground and she saw Sutton "on one side" of the deceased and that she pulled Sutton away from the deceased. Sutton protested to her that he had not done anything. Monique Byrne gave no further evidence which would implicate Sutton. Simon Monkerud gave evidence that he saw the deceased lying on the ground and Sutton "over" the deceased but he did not see Sutton do anything to the deceased and after Simon Monkerud yelled out "cut it out", Sutton walked over to Simon Monkerud. Simon Monkerud gave no further evidence which would implicate Sutton. Katrina Whitney saw Monique Byrne pushing Sutton away from the deceased and gave no further evidence which would implicate Sutton. 145 In my opinion Sutton's fifth ground of appeal should be upheld.

CONCLUSION 146 In my opinion, Cornelissen's first, second, third and fourth grounds of appeal should be upheld and his appeal against conviction should be allowed. As I have upheld his fourth ground of appeal, the conviction should be quashed absolutely and a judgment and verdict of acquittal entered. 147 In my opinion, Sutton's first, second, fourth and fifth grounds of appeal should be upheld and his appeal against conviction should be allowed. As I have upheld Sutton's fifth ground of appeal, his conviction should be quashed absolutely and a judgment and verdict of acquittal entered. 148 As both conviction appeals should be allowed, it is unnecessary to deal with the applications for leave to appeal against sentence. 149 HIDDEN J: I agree with James J. 150 BELL J: I agree with James J **********

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