Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Section 279(1)(b) murder - The subjective and objective components of s 279 (1)(b) - Trial judge erred in directions to jury - Whether jury verdict unreasonable or cannot be supported - Whether trial judge failed adequately to canvass the defence case in his summing up

Criminal law - Conviction for murder quashed on appeal - Acquittal or new trial - Whether it would be unjust to order a new trial of the appellant for murder - Whether a judgment of conviction for manslaughter should be entered

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(5)

Criminal Code (WA), s 10A, s 10B, s 10C, s 23B, s 279, s 280, s 281

Criminal Procedure Act 2004 (WA), s 85, s 112, s 131, sch 1 div 2

Juries Act 1957 (WA), s 51

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Anderson v The Queen (1991) 53 A Crim R 421

Carroll v The State of Western Australia [2004] WASCA 254

Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572

Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439

JRNT v The State of Western Australia [2011] WASCA 183

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494

Pollock v The State of Western Australia [2011] WASCA 133

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

R v Taiters; ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

R v Wilkes [1948] HCA 22; (1948) 77 CLR 511

Raux v The State of Western Australia [2012] WASCA 1

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527

The State of Western Australia v Schmidt [2012] WASCSR 151

Walsh v The State of Western Australia [2011] WASCA 119

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

1 The appellant, Mr Stefan Pahia Schmidt, appeals from his conviction of the murder of Mr Andrew Marshall. On the evening of Sunday, 8 May 2011, both men were drinking in a bar on the first floor of the Ocean Beach Hotel in Cottesloe, a suburb of Perth. After (perhaps) a very brief interchange, Mr Schmidt pushed Mr Marshall in the upper body with sufficient force to propel him into and break a plate glass window near where they were standing. Mr Marshall fell through the plate glass window to the pavement below, sustaining injuries which led to his death.

2 The prosecution did not allege that Mr Schmidt intended to kill Mr Marshall. Rather the prosecution case for murder was brought on the basis that at the time he pushed Mr Marshall, Mr Schmidt intended to cause him a bodily injury of such a nature as to endanger, or be likely to endanger his life. However, at no point during the case did the prosecution identify the bodily injury which it was asserted that Mr Schmidt intended to cause, or, with any particularity, the manner in which it was asserted Mr Schmidt intended to cause such an injury. The prosecution case on that topic was no more specific than asserting that the jury could find an intent of the requisite character from the fact that Mr Schmidt pushed Mr Marshall with significant force in proximity to concrete pillars, brick walls and wall-to-wall windows.

3 Consistently with prior authority, the trial judge directed the jury that before they could convict Mr Schmidt of murder, they must be satisfied beyond reasonable doubt that he intended (subjectively) to cause Mr Marshall a bodily injury, and that the injury which he intended to cause was of such a nature (objectively assessed) as to endanger or be likely to endanger Mr Marshall's life. However, the trial judge gave the jury no more guidance on the subject of the particular bodily injury, or manner of bodily injury, which it was open to find Mr Schmidt had intended than that provided by the prosecution. Without such guidance, having regard to the ambiguity which the prosecution case was presented in this respect, and to the circumstances of this case, it would have been difficult for the jury to focus first upon the bodily injury which Mr Schmidt subjectively intended to cause and then subsequently assess the objective likelihood of that injury endangering human life.

4 In the circumstances of Mr Marshall's death, the jury could not have found that Mr Schmidt intended to cause Mr Marshall bodily injury of the kind sufficient to establish the offence of murder unless the jury found, beyond reasonable doubt, that Mr Schmidt intended to propel Mr Marshall into the window with sufficient force to break the window as, on the evidence, it was not open to find that Mr Schmidt intended to cause bodily injury of the requisite character any other way. In the circumstances of this case, a judicial direction to that effect was necessary to ensure that the jury properly addressed the critical question which it was required to resolve.

5 In the particular circumstances of this case, the failure to give such a direction created a real risk that the jury may have reasoned towards a conclusion of guilt without being satisfied beyond reasonable doubt that Mr Schmidt intended to cause Mr Marshall to impact and break the window, which was an essential step on the path to a conclusion of guilt of murder. This caused a miscarriage of justice. The appeal against conviction should be allowed and a retrial ordered. In the circumstances, it is neither necessary nor appropriate to deal with Mr Schmidt's appeal against sentence.

6 The prosecutor opened the case on the basis that Mr Schmidt 'in a fit of rage, walked up to Andrew Marshall and after perhaps the barest exchange of words, pushed him so hard that he went through a window, landing or falling through that window onto the footpath below, suffering injuries of such severity that he was pronounced dead early in the hours of the following morning'. The prosecutor foreshadowed evidence which would establish that Mr Schmidt appeared to have argued with someone at one end of the bar on the first floor of the hotel, before walking over to an area where a girl Mr Schmidt regards as his sister, and another girl who was the girlfriend of Mr Schmidt's friend were talking to Mr Marshall. Within seconds of arriving at that area, Mr Schmidt pushed Mr Marshall with the result that he went through the window and fell to his death. Mr Schmidt then left the area, and as shown on closed-circuit television footage, approached another man with whom he had no prior dealings, and punched him so hard that he fell to the ground, after which Mr Schmidt leant over and pushed him towards the wall. Mr Schmidt then left the hotel, walking adjacent to the area where Mr Marshall lay on the footpath where he was receiving attention from security staff and others, but without, himself, making any effort to render assistance or even inquire as to his condition.

7 The prosecutor foreshadowed expert evidence to the effect that the glass in the window through which Mr Marshall fell was 5.65 mm thick, which was slightly thinner than the other windows in the upstairs bar. The broken window was not made of safety glass, nor was it required to be, although two of the windows in the upstairs bar were made of safety glass. The expert evidence to be adduced by the prosecution was said to establish that a force of around 1,000 newtons - equivalent to the force exerted by gravity on a weight of about 102 kg moving at a speed of at least 2 m a second, or 7.2 kms an hour, would be required to break the window.

8 The prosecutor asserted that the jury would be satisfied that Mr Schmidt caused Mr Marshall's death, and that the State would prove that his death was not an accident, because it was objectively foreseeable. On the subject of intention, the prosecutor stated:

In this case the State does not allege that the accused premeditated - committed a premeditated killing. The State alleges that the accused, with an intention to cause bodily injury of such a nature as to endanger or be likely to endanger Mr Marshall's life. With that intention, he unlawfully killed Andrew Marshall. So if the State proves that the accused intended to do a bodily injury and you find that the bodily injury he intended to do was objectively likely to endanger Mr Marshall's life, or in fact did endanger his life, then the accused would be guilty of murder. So the State says that that was the accused's intention when he assaulted Andrew Marshall. To cause a bodily injury to him, which objectively was of such a nature as to endanger or be likely to endanger Mr Marshall (ts 140).

9 After referring to inferential reasoning, the prosecutor continued:

The State says that the intention in this case can been seen from all of the surrounding circumstances; that the accused was angry. You can see that yourself from the events leading up to Mr Marshall going out that window. The State will ask you to look at the force the accused must have used to propel Mr Marshall out that window. It will ask you to look at the direction that the accused pushed him in. Not back to the open floor space, not to the side, but at a window, a window of the size and shape of that window. We'll ask you to look at the accused's reaction afterwards. He immediately walked off. He was still so angry that he punched another innocent bystander and still went after him. And look at the force he used on that person. That's the kind of force that the accused was capable of applying. Far from being shocked and appalled into calming down and trying to assist as you might think the accused would have done if he had not intended to cause harm, he punched that other patron very hard and then left with that backward glance as Mr Marshall lay on the pavement. Now, the State says that when you look at all of the evidence in this trial, you'll have little trouble in coming to the conclusion that the accused had that intention required to establish the offence of murder (ts 140 - 141).

10 That was the extent of the prosecutor's opening on the subject of the intention which the State asked the jury to find in order to establish the charge of murder. It will be seen that the prosecutor did not identify any form of bodily injury which it would assert that Mr Schmidt intended to cause. The prosecutor's references to the inferences which the jury should draw from the fact that Mr Schmidt pushed Mr Marshall in the direction of a window, and as to the extent of the force applied, inferentially suggests that it was the prosecution case that Mr Schmidt intended to cause Mr Marshall injury by causing Mr Marshall's body to break the window, but that was not explicitly put in the opening, nor at any later point in the trial.

11 Senior counsel for Mr Schmidt opened on the basis that Mr Schmidt accepted that he pushed Mr Marshall at the time and place alleged, but denied that he committed murder or manslaughter. Mr Schmidt had been drinking, but denied that he was in a blind fit of rage, or indeed that he bore any ill feeling towards Mr Marshall, to whom he had never spoken.

12 The defence case was that Mr Schmidt approached his two female companions to encourage them to leave the hotel and go home. Mr Marshall made a provocative remark causing Mr Schmidt to push him out of the way with his left hand, causing him to tumble backwards and fall towards the glass. His intention was simply to move him out of the way - it was never intended that he kill him or that he cause him to sustain life-threatening injuries - he was simply pushing him out of the way. The defence case was that although the push was deliberate, the consequence of the push - namely, Mr Marshall falling through the window to his death, was a tragic accident.

13 On the subject of intent, senior counsel for Mr Schmidt stated:

As my friend says, murder can be a situation where you intend to kill someone. They resile from that. They accept that there was never any intent to kill this man and that's quite properly so we say. What they do say, however, is that he intended at the time he pushed him to cause him life-endangering bodily injury, not just any bodily injury, but they say that this man intended, and they need to prove this to show murder, life-endangering bodily injury to Mr Marshall. Now, the accused denies any such intention, and we say on the evidence it will be clear to you that no such intent is made out (ts 143 - 144).

14 So, at this point at least, the defence case on intention was put to the jury at the same level of generality as the prosecution case.

15 The prosecution led evidence from a number of bystanders who observed the critical events. It is unnecessary to analyse their evidence in detail for the purposes of this appeal. Consistently with the prosecution opening, the evidence established that after the briefest (if any) interchange between Mr Schmidt and Mr Marshall, Mr Schmidt pushed Mr Marshall with the result that Mr Marshall broke and fell through the window to the pavement below. As might be expected, the witnesses varied in their description of the precise circumstances of the incident, and in relation to the extent of the force used by Mr Schmidt.

16 The prosecution led evidence from Mr Samuel Neale, who was the principal building surveyor employed by the Town of Cottesloe, the municipality within which the hotel was situated. His evidence was to the effect that the requisite Australian Standard incorporated into the applicable building code required that the glass in the relevant window have a minimum thickness of 4 mm. The Standard did not require that the glass be safety glass.

17 The State also led evidence from Dr Ralph James, a lecturer in physics and biophysics at the University of Western Australia. He had measured the thickness in the glass of the window which was broken when Mr Marshall went through it. It was 5.65 mm thick - a little less than the other windows in the upstairs bar which varied between 5.79 and 5.87 mm thick but thicker than required by the relevant Australian Standard. Dr James had undertaken tests for the purpose of identifying and measuring the force required to break windows at the hotel which were similar to the window broken when Mr Marshall was pushed into it. After performing various tests, he formed the view that a force of between 1,000 and 2,000 newtons travelling at 2 m per second or faster would have been required to break the relevant window. His evidence was that a force of 10 newtons was approximately equal to the force of gravity on 1 kg of weight so that, a force of 1,000 newtons would be equivalent to the force of gravity on a weight of 100 kgs.

18 The jury also undertook a view of the Ocean Beach Hotel, pursuant to an order by the trial judge under s 51 of the Juries Act 1957 (WA).

19 Mr Schmidt gave evidence. His evidence was that he weighed approximately 150 kgs at the time of the incident, but was fit, having played rugby over a number of years. In May 2011 he was training at a gym at least two or three times each week. It was an admitted fact that as at May 2011 Mr Marshall weighed 90 kgs.

20 Mr Schmidt testified that in May 2011 he was working as a scaffolder. On Sunday, 8 May 2011, after celebrating Mother's Day with a breakfast, he started drinking vodka and orange juice, followed by beer. During the day, he smoked a cannabis cigarette and took two ecstasy tablets, in conjunction with more alcohol. He was one of a group of about 12 or 15 people who decided to go to the Ocean Beach Hotel at about 4.00 pm that afternoon. He arrived at between 4.00 pm and 4.30 pm. Upon arrival, he bought a round of drinks for the group. He said that he was feeling happy and was not feeling angry or aggressive.

21 The group was eventually joined by two girls: Ms Stella Paki, who is a woman Mr Schmidt regards as his sister, because her parents are his godparents, and Ms Leila McLeod, who was the girlfriend of Stella's brother, Wiremu Paki (also known as Woods). Those girls did not arrive until the larger group had been at the hotel for about two hours.

22 Mr Schmidt spoke by telephone to his girlfriend, who was living in New South Wales, at about 8.00 pm. He called her from the carpark outside the hotel, and spoke to her for between 30 and 40 minutes. He then returned to the upstairs bar. There was then a disagreement amongst a number of male members of the group, relating to an assertion that one of the members of the group was displaying romantic interest in Ms Paki. This led to a disagreement between Mr Schmidt and Woods. According to Mr Schmidt, Woods suggested to him that the situation could be resolved if the girls left. Mr Schmidt agreed and after going to the bar to obtain a glass of water, went over to the girls to give them their mobile phones (which he asserted he was holding) and to ask them to go home.

23 As Mr Schmidt approached the girls, he saw that they were talking to Mr Marshall. He had not noticed Mr Marshall earlier in the evening. He denied that he was angry or in a rage. However, when Mr Marshall looked at him as he approached the girls, Mr Schmidt told him to 'fuck off' by which he meant that Mr Marshall should go away. Mr Marshall said something back to him, but Mr Schmidt could not recall what it was. He had asked the girls to go home in a raised voice, and whatever it was that Mr Marshall said to him made him annoyed. As a result, according to Mr Schmidt, he pushed Mr Marshall with his left hand to the upper region of his chest or shoulder. He supposed that Mr Marshall's back would have been towards the window, towards Eric Street, although he was not paying attention to the walls and windows. He described the push as 'like a rugby fend off'. He denied pushing Mr Marshall in any particular direction, and asserted that his intention was for Mr Marshall to go away. He denied that he intended to push Mr Marshall toward, or into the window, or cause him any harm.

24 Mr Schmidt saw Mr Marshall strike the window with his back shoulders, after which it broke and he fell through the window. During his evidence-in-chief he denied any assertion that he intended to push Mr Marshall 'so hard that he went through the window'. He asserted that he could not believe what had happened, and again stated that he did not intend to cause Mr Marshall any harm of any kind.

25 According to Mr Schmidt, as he left the bar, there was another person standing there with his hands in the air who was screaming at him. He felt threatened, scared and intimidated, so he punched him and then pushed him aside. According to Mr Schmidt, he just wanted to get out of the hotel. He felt shocked and was just thinking that he had to get home.

26 As he left, he briefly saw Mr Marshall on the ground. He felt sick. He was scared - he was not trying to run away and leave the scene of the crime, but he did want to get home and gather his thoughts. According to Mr Schmidt, he did not turn his mind to what sort of injuries Mr Marshall might have had at that stage. He then met a friend, told him what had happened, and they travelled by taxi to Mr Schmidt's home.

27 The following day Mr Schmidt made arrangements to hand himself in to police, which subsequently occurred.

28 In concluding his evidence-in-chief, Mr Schmidt reiterated that he had no intention to hurt Mr Marshall, and did not at any stage intend to throw or push him through the window or even into the window. He did, however, accept that he pushed Mr Marshall, and that he had died.

29 In cross-examination, Mr Schmidt denied that he was angry as he approached the girls - although he conceded that he was annoyed and frustrated as a result of his disagreement with Woods. He accepted that he was affected by alcohol, but did not feel overly drunk. He was unsure as to whether he yelled at the girls to go home (in order to be heard above the music) before or after he told Mr Marshall to 'fuck off', although he thought it more likely that he spoke to Mr Marshall after asking the girls to leave. He thought Mr Marshall was interfering with his communication with the girls, which is why he told him to 'fuck off' and pushed him. He asserted that his only aim was to get Mr Marshall to leave.

30 When it was put to Mr Schmidt that in fact he pushed Mr Marshall into a corner area, from which he would not be able to leave the area at all, Mr Schmidt asserted that he did not have a sense of direction as he was pushing Mr Schmidt (ts 714). Mr Schmidt thought that he was between 1 m and 2 m away from the window at the time of the push, although he accepted that he could have been as close as between half a metre and 1 m from the window at the time of the push.

31 During cross-examination on the subject of the events which led to Mr Marshall going through the window, the following exchange took place:

And you'd accept, wouldn't you, you pushed him through the window?---Not intentionally. That was never part of what I pushed [sic intended].

I'm not asking you about your intention at the moment. I'm asking you did you push him through the window?---No, I didn't. I pushed him and then he went through the window. I didn't push him through the window. I didn't look at the window and say, 'There's a window. I'm going to push him through it'. That wasn't the case.

You pushed him through the window, didn't you?---No. I pushed him and he - and he fell backwards, hit the window and then went out the window.

You think there's a distinction?---What do you mean?

You think there's a difference between the two things that you're saying?---I do. Pushing someone through a window, from what you've asked me, is I've lined him up and I've pushed him straight out the window, which was not the case. Pushing someone and subsequently him losing his balance and falling back into a window and then going through, I can make a distinction between those two, yes.

Sorry. Are you now saying he lost his balance, Mr Schmidt?---Well, that's what I said. He was going backwards with his hand in his - hands in the air like this, shoulders back first. He went to go and push himself off and then pushed himself through.

He pushed himself through the window?---Well, that's what I preceived [sic perceived it] to be like. As he pushed himself of [sic off] the window he just went through (ts 717).

32 Counsel then described the motion simulated by Mr Schmidt (being the way in which Mr Marshall moved) as putting his arms up slightly above his shoulders, at about ear level, and arching his back backwards at the time he went through the window.

33 It is of some significance that, at this point in the cross-examination, the prosecutor endeavoured to restrict Mr Schmidt from giving evidence with respect to his intention at the time of the push. The only point at which the prosecutor cross-examined on the topic of intention was in the following interchange:

You know, don't you, Mr Schmidt, that - and you know from your employment history as much as anything else that concrete, brick, things like that are hard surfaces?---Yes.

And you know that you should not push or assault people around those surfaces, don't you?---Sorry, what do you mean?

You know that it is dangerous to assault people in areas like that, don't you?---I know it's dangerous to assault people in any circumstance.

Because - - -?---Not just specifically one certain area.

Any place?---That's right.

And glass you'd accept has an additional danger in that it breaks?---Correct.

And those are things that you specifically know more than other people because of your training as a bouncer?---And from what's happened.

No, I'm - okay. Let me make it clear. Back at 8 May, before this happened, you knew all of those things, didn't you?---I knew that when I done my security licence we were told sort of what to look for, how to judge people. We weren't run through specifics of certain thicknesses towards any kind of building material where there - - -

...

You meant to hurt Mr Marshall, didn't you?---No, I did not. I did not intend to cause him any harm at all.

And yet you knew that assaulting someone could do all sorts of harm?---In a general sense, yes, I did.

You knew that - - -?---But at that time of the incident I wasn't thinking about anything like that.

About doing - - -?---I wasn't thinking of hurting, not at all.

You knew that assaulting someone can kill them, didn't you?---I did know that, yes. Assaulting someone can lead to someone dying (ts 723, 730).

34 Within this passage of cross-examination it is necessary to distinguish between those questions which went to Mr Schmidt's knowledge of the possible consequences (and their foreseeability) of assaulting Mr Marshall, and which were relevant to the question of accident, and those questions which went to his subjective intent at the time of the push. During the entire cross-examination of Mr Schmidt, the prosecutor asked only one question on the latter topic, when she put to Mr Schmidt that he 'meant to hurt Mr Marshall' (ts 730). It is of significance to this appeal that at no point in her cross-examination of Mr Schmidt, did the prosecutor identify the bodily injury which the State asserted Mr Schmidt intended to cause, or the manner in which Mr Schmidt intended to cause Mr Marshall harm, or put to Mr Schmidt that he intended to push Mr Marshall so as to cause him to break the window. However, during his evidence-in-chief, Mr Schmidt denied that he intended to cause any form of harm to Mr Marshall, and he specifically denied, during his evidence-in-chief, and in response to the prosecutor's earlier question which was not on the subject of intent, that he intended to cause Mr Marshall to break the window.

35 The prosecutor commenced her closing address by reminding the jury that she had told them, in the course of her opening address, that there were three real issues in the trial. They were first, what did the accused actually do - that is, what was the exact nature of his assault upon Mr Marshall; second, had the State established that Mr Marshall's death was not an accident; and third, what was the intention with which Mr Schmidt pushed Mr Marshall? The prosecutor then addressed those three issues in turn.

36 During the course of her remarks on the subject of precisely what Mr Schmidt had done, the prosecutor asserted:

You see, what the accused did is he didn't just push him towards the window, he pushed him at it, into it and through it. There is no room, we'd submit for any other conclusion in this case (ts 796).

37 In the same section of her address, in the context of referring the evidence given by Dr James, the prosecutor referred to the fact that the police had told him that they did not think Mr Schmidt meant to push Mr Marshall through the window. The prosecutor observed 'of course, that's a matter for you to determine, not the police' (ts 801).

38 The second topic addressed by the prosecutor was the issue of accident. She observed, correctly, that:

The State must prove either that the accused foresaw the death as a possible outcome of his assault upon Mr Marshall, or that an ordinary, sober person in the accused's position would reasonably have foreseen that Mr Marshall's death was a possible outcome of his assault upon him (ts 809).

The accused's own evidence shows that he was aware of his strength, his weight. He knew from his work history and fighting training that assaulting a person can be fatal. He knew where he was this day, at the OBH. He'd been there lots of times before. He was familiar with the premises and the premises, as you yourselves have seen from the exhibits, are brick, concrete, glass. And when I asked him in that concluding part of his cross-examination: You know that assaulting someone can kill them? His answer was: I did know that, yes. Assaulting someone can lead to them dying. It can lead to someone dying - - he said. ... We say that if someone pushes someone as hard as the accused pushed Andrew Marshall in that room, with rendered concrete pillars, wall-to-wall windows, brick floors, death is absolutely reasonably foreseeable as a possible outcome. Assaults can kill people. Forceful collisions with hard surfaces can kill people. And the accused, he knew it. ... Now, if he did foresee Mr Marshall's death, or if you find that an ordinary person as I've described would have foreseen that death as a possible outcome, then you would find that the State has proved this was not an accident. Now, his Honour will go through that in more detail in the course of his direction on the law. But that's what the State needs to prove. It needs to prove that the death was not an accident. We don't need to prove what actually happened, as I say, was foreseeable, that he would break the window, the window would smash, he would land on the pavement and die. But even if you look at it that way, even if the State had to prove that, Mr Marshall's at most a metre from the window. He's 1.82 metres tall, 90 kilos. He's obviously not a small man. The window is 1.84 metres tall - high at its highest point. He must have practically covered the window from top to bottom. The whole of his body from at least his knees up, because you've got the measurements of the window, .47 metres high, 47 centimetres high the ledge was. Everything, his body was framed by that window. And the accused, weighing 150 kilos - 152, who knows his own strength, gives him a shove, however you find it to be, of significant force straight at it - straight at it and he went straight through it. When you picture that scenario in your heads, right up until that moment that the glass breaks, put yourself in the position of watching it. If you saw that happen wouldn't you think, 'That's dangerous'? And it's not a remote or speculative outcome. Glass breaks. We know glass breaks. Glass is an inherently dangerous thing. And I'd suggest to you that you should have no difficulty in finding that in the scenario that occurred here it was absolutely foreseeable what the accused man did. It's like picking up a gun that you've never seen before, not checking if it's loaded or not, not checking whether it's serviceable or not, pointing it in the general direction of a person and firing it. And then for good measure saying, 'The safety catch wasn't on'. It's an inherently dangerous thing. And if you push someone at it, it's a foreseeable outcome that it'll break. They're not hidden, unknown dangers. They're patently obvious and all of us know what glass does. Now, it's important that you don't mix up accident and intent and it's pretty easy to do when you're talking about foreseeability and all of those sorts of things. Accident is about foreseeable outcomes; what is foreseeable as a possible outcome. Intent, which I'm about to come to, is about something else (ts 809 - 811).

40 So, in the context of accident, it is clear that the prosecutor was putting the State case on the basis that both the accused and a reasonable sober person could have foreseen that death was a possible consequence of Mr Schmidt pushing Mr Marshall with the force which he used, given their location at that time. Significantly, the prosecutor resiled from the proposition that the State had to establish that it was foreseeable that Mr Marshall would meet his death by falling through the window, although she nevertheless invited the jury to arrive at that conclusion. However, she expressly put the State case more widely, by referring to the push occurring in a room with rendered concrete pillars, wall to wall windows and brick floors. Further, she expressly relied upon her cross-examination of Mr Schmidt which was, as I have noted, conducted at all times at a level of generality, both with respect to intention and foreseeability, and which at no point descended to the proposition that Mr Schmidt intended to push Mr Marshall so as to cause him to break the window.

41 The breadth of the prosecution case on accident was reinforced a little later in the prosecutor's address, when she referred to evidence given by one observer, Mr Banning, to the effect that he was surprised when the window broke, and that he did not think Mr Schmidt's push was of a kind likely to break the window. In that context the prosecutor asserted:

What Mr Banning did tell you is that he had no doubt if there hadn't been a window behind Mr Marshall, he would have fallen down. And if you push someone with that kind of force that would knock them down - you've seen what kind of force the accused uses to push someone, knock them down. Death is undoubtedly, we say, a foreseeable possible outcome. And you would certainly accept, I'd suggest, that the accused admitted that (ts 813).

42 So, at least on the question of foreseeability of death, it is clear that the prosecution case was not limited to the foreseeability of death as a consequence of Mr Marshall breaking the glass and falling through the window to the street below.

43 The prosecutor then turned to the third major issue which she had identified - namely, the issue of intent. She asserted:

Because the charge of murder requires that the State prove not only that the accused unlawfully killed Mr Marshall, but that he did so with a particular intent. Now the State says and has always said that the accused did not necessarily intend to kill Mr Marshall. What the State says and what the State needs to prove is that he intended to do bodily harm of such a nature as to endanger Mr Marshall's life, or be likely to endanger it. Now, again, in his opening, my learned friend misquoted what the State says about this. There's an important difference between what the law is, which is what the State told you in opening, and how my learned friend expressed it. What the State must prove is that the accused intended to cause a bodily injury to Mr Marshall. Not a life-threatening injury as my learned friend put it. The State must prove a bodily injury. Then in addition and the State must prove that the injury that the accused intended to cause was objectively. That is an objective bystander would consider that injury to be of such a nature as to endanger life or be likely to endanger life. So - you see, my learned friend merged that test and said the State needed to prove the accused intended to cause a life-threatening injury. And that's not right. It is first of all that the accused intended a bodily injury. And objectively that injury is of that nature. And it probably seems like a pretty semantic distinction to you. And again, this is why lawyers aren't always the best people to judge things. But it's an important distinction. And if you think about it, it is common sense in one respect. If a person intends to injure someone else and they don't think about what the consequences of that injury are, even if it's obvious to everybody else, should they be relieved of the consequences of what they have done? The law says if you intend or if a person intends to do an injury to another person and that injury would be likely to endanger life or does in fact endanger life and the person dies, that is murder. And it's no defence to say, well, I intended the injury but I didn't know that they - their life would be endangered because of it. That's not a defence. Now, as I said, the State case isn't that the accused intended to kill Mr Marshall. He may have, he may not. The State doesn't seek to prove that he did. And the State acknowledges the burden is on it, and that you could not be satisfied beyond reasonable doubt that the accused did have an intention to kill. What he did do, the State says, is intentionally push him into window intending to hurt him. And the way he intended to hurt him was of such a nature that it endangered his life. And in fact it was likely to endanger his life. And we say he's guilty of murder on that basis. That he intended to do him a bodily injury of such a nature as to endanger his life or be likely to do so. We don't need to tell you exactly what that injury was. What we need to prove to you is that it was of that nature. And that nature's very clear in this case. Now, intent doesn't have to be coolly arrived at. It doesn't have to be contemplated then carried out. Intent can be formed on the spur of the moment in a fit of rage or it can be long formed. It can vacillate. It can be momentary or long lasting. It can be carried out with a full realisation of the consequences. Or those consequences might only really be appreciated afterwards.

It can be regretted or not, but what it can't be once carried out is taken back. And the State doesn't need to prove when the accused formed that intent, all the State needs to prove is that at the time that he assaulted Mr Marshall he had it and that's where what was going through the accused's mind is the issue. Did he personally have the intention to do a bodily injury to Mr Marshall? And you assess that the same as with other matters in this trial. Obviously you look at what he did, how he pushed him, how hard he pushed, the direction in which he pushed him, the environment, his mood. But you can also look at what he did do afterwards; he didn't look out the window to see where Mr Marshall was. He claimed that he didn't even know that he was seriously hurt at that point. He immediately turned and walked away. He wasn't in a state of shock; he was still aggressive and confrontational. No surprise, no change in his behaviour, just, 'What are you looking at?' and another assault upon an unsuspecting stranger. He didn't see what he could do for - do to help, which you think he might have done if he hadn't meant to hurt Mr Marshall. He didn't stay to find out that he had an ambulance coming, he left and on the way he texted, 'Sure thing' smiley face to his girlfriend. Her account of their conversation later that next day was that he said he pushed him and he fell out the window (ts 813 - 815).

44 It is clear from this portion of the prosecutor's address that, as with foreseeability, on the issue of intention the State case was not limited to an intention that Mr Marshall break the window, or that he go through the window and suffer injury by falling to the street below. Rather, the case was left at an entirely general level - namely, that the jury could and should infer from the push that some form of bodily injury of the requisite character was intended by Mr Schmidt. In that context, the prosecutor asserted, somewhat cryptically, that the nature of the injury intended by Mr Schmidt was 'very clear in this case' (ts 814). However, at no point did the prosecutor enunciate with any clarity what the injury was that Mr Schmidt had intended to cause, or how Mr Schmidt intended that injury to be caused.

45 Cast at the level of generality presented in this case, the objective question as to intent; that is, whether the injury intended by Mr Schmidt was, objectively assessed, of a nature that would endanger or be likely to endanger the life of Mr Marshall becomes difficult for the jury to resolve. In relation to that issue, the prosecutor asserted:

If you find then beyond reasonable doubt that the State has proved the accused had the intention that I've referred to; that is the subjective intention, the personal intention to do that bodily injury then you move to the next part; that objective test of the nature of the injury. Now, we say you should have little difficulty in finding that objectively the injury he intended to cause did endanger Mr Marshall's life. Again, the force which all of the evidence proves that the accused inflicted upon Mr Marshall; the location, the environment, the direction of the push and what loomed outside that window? A five metre plus drop to the concrete footpath. All of you tell - all of that tells you that objectively the accused intended to hurt Mr Marshall in such a way that is that injury was of such a nature as to endanger, or at least be likely to endanger Mr Marshall's life (ts 816).

46 It is clear from this passage that the prosecution case included, but was not necessarily limited to, the assertion that Mr Schmidt intended Mr Marshall to suffer injury by falling through the window to the footpath below.

47 In the course of his closing address, senior counsel for Mr Schmidt contended that there was no evidence that Mr Schmidt had any specific intent at the time he pushed Mr Marshall. He described the push as 'impulsive' and 'reactive' (ts 825). He supported that submission by reference to the absence of any evidence of motive or of malice directed towards Mr Marshall, with whom Mr Schmidt had no prior association whatever. He suggested to the jury that if Mr Schmidt had wanted to harm Mr Marshall, he would have punched him, as he demonstrated when he punched the other man on his way out of the bar.

48 Given that the general thrust of the defence closing was to the effect that Mr Schmidt had no specific intent at the time he pushed Mr Marshall, it would not have been appropriate for counsel to dwell at any length on any specific intent with respect to either the bodily injury intended to be caused, or the manner of inflicting that injury and defence counsel did not do so. However, in the course of reviewing the evidence with respect to the extent of the force used by Mr Schmidt at the time he pushed Mr Marshall, senior counsel referred to Mr Banning's evidence to the effect that it was not the sort of push which would cause him to conclude that Mr Schmidt intended to put Mr Marshall through a window. Further, in the context of the submission that if Mr Schmidt had intended to harm Mr Marshall, he would have done so by punching him, senior counsel suggested that it was implausible to contend that Mr Schmidt intended harm by relying on the fact that 'there was a faulty window behind him and take the chance that the person might go out the window' (ts 855).

49 So, although the defence case was presented on the basis that Mr Schmidt had no specific intent at the time he pushed Mr Marshall, in the two instances to which I have referred, defence counsel responded to a prosecution case put on the basis that Mr Schmidt intended to push Mr Marshall through the window, although, as I have pointed out, the prosecution case was in fact put on a more general basis.

50 After the usual general directions with respect to the burden and standard of proof, the drawing of inferences and so on, the trial judge gave the following direction with respect to the elements of the offence of murder:

The elements that the State must prove beyond a reasonable doubt are these; (1) that the accused killed Andrew Kirk Marshall, which is to say that the accused caused the death of Andrew Kirk Marshall. (2) The killing was unlawful. (3) At the time of the act causing the death the accused himself had the intention to cause bodily harm. (4) That the bodily harm intended by the accused was objectively of such a nature as to endanger or be likely to endanger Mr Marshall's life (ts 896).

51 The trial judge then addressed each of those elements in turn. In relation to the first element, he suggested to the jury that they may have little difficulty in concluding that Mr Schmidt's conduct was a substantial or significant cause of Mr Marshall's death.

52 In the context of the second element, which requires the killing to be unlawful, the trial judge directed the jury in relation to accident. He directed that:

In order to prove that Mr Marshall's death was not an accident, the State must prove beyond a reasonable doubt either that the accused foresaw, actually foresaw Mr Marshall's death as a possible outcome of his actions. Or that an ordinary person in the position of the accused would reasonably have foreseen Mr Marshall's death as a possible outcome. A possible outcome for this purpose is not a remote or speculative outcome (ts 898).

53 The trial judge then turned to what he had characterised as the third and fourth elements of the offence of murder, concerning intent. Because the adequacy of the directions which he gave on that subject is central to this appeal, I will set out the directions which he gave on that topic in full:

I turn then to the next element, the element of intending to cause a bodily injury. I remind you for this element, the State must prove beyond a reasonable doubt that the accused himself intended to cause bodily injury to Mr Marshall. Bodily injury means what it sounds like, an injury to a person's body. Intention is something that typically must be determined finally by reference to inference. I've reminded you already, I've told you already what finding inferences entails in the criminal law. It can only be determined by looking at the circumstances of the case and the facts as you find them to be. Intention is not the same as motive. The State does not have to establish any motive for the accused's act. Where a motive has been shown, if it has been shown, it may assist with determining whether or not there was an intention. But establishment of a motive is not required for the purpose of establishing intention. Further, intention does not require premeditation or planning. It can be on the spur of the moment. It can be regretted after the event. Now, here the State case on intention is that on all the evidence you'll be satisfied beyond a reasonable doubt, the matter is of course for you, the accused's had the required intention, in particular by reference to the evidence that the accused's mood is one of upsetedness, following his exchanges in the top bar prior to the incident with Woods; what the nickname the accused used for Mr Paki, who he treated as a brother. Evidence that included evidence of the accused himself as to upsettedness, or the degree of upsettedness as a form of anger. The evidence, they say, is consistent with the accused's reaction to what occurred as one of disbelief. The accused saying to Mr Marshall to, 'Fuck off' prior to the physical exchange, the pushing exchange, between them. Evidence as to that exchange has been a two-handed one and in the direction of the window, pushing to and through it. The evidence as to the effort the accused used, including that of Mr Sylva when the evidence of Mr Sylva is considered in its entirely, as well as evidence of the accused himself. The evidence as to the - the evidence of Dr James as to what force, described as Dr James did, was required to break the plate glass windows in the top floor bar of the OBH in his tests. And the evidence of how the accused behaved after the incident, walking away as he did and punching and pushing another man as he did, glancing in the direction of Mr Marshall on the pavement as he did and leaving the accused's mobile phones at home as he did. As well as what the prosecution says you should find as to the message sent to Ms Cooper, the 'sure thing' message with a smiley face added. Here, however, the defence says you will not be satisfied beyond reasonable doubt, again the matter is for you, that the accused had the required intention on all the evidence. In particular, the accused's evidence as to what he did to Mr Marshall as a pushing away to have nothing further to do with him, as a spur of the moment matter, using evidence, on all the evidence, much less than the full force of which he might have been capable. But rather to fend Mr Marshall off as a rugby player would, where the accused was a rugby player and which the defendant says you should consider with the evidence going to what force the accused was capable of. The evidence of Mr Sylva and Mr Barnes as to how much of a push they saw the accused give to Mr Marshall. The evidence of Mr Sylva and Mr Banning as to whether Mr Marshall was sitting or standing, indicating Mr Marshall was not pulled up from a seated position, the defence says. The evidence as to the window breaking as it did, when safety windows would not have broken in that way. The lack of any support for an intention in a motive to cause harm to Mr Marshall or to protect the girls at the table. The lack of support for any intention that might come from the accused being in a fit of rage, the defence says, given the evidence, they say, points away from any such rage evidence from Mr Sylva and Ms Barnes, Mr Barnes' sister. It is important in all of this and I need to remind you of this, both counsel acknowledge this, that the State does not contend that the accused had an intention to kill Mr Marshall. That is not any part of the State case. The intention, the State says, that the accused himself had is the intention to cause bodily harm, as I've described it. Now, I turn to the next element, the element of bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed. If you are satisfied of this beyond a reasonable doubt then this element has been met. It's important you note it's not required that the accused knew the injury intended was of this nature. The matter is determined objectively. The State does not contend that the accused knew the bodily injury the accused says - the prosecution says the accused intended to inflict was of that character. And of course, like all the elements, it must be proved beyond a reasonable doubt. Here, the State case is that you'll be readily satisfied beyond a reasonable doubt, the matter is of course for you, on all the evidence that the injury intended was objectively of the required character, pointing to the evidence of what happened in the top bar involving Mr Marshall that night. Here, the defence says, however, that you'll not be satisfied beyond a reasonable doubt, the matter is for you, on all the evidence that the injury intended was of that objective character. In particular, by reference to what the accused intended to do, pushing Mr Marshall away, as the accused testified. The evidence as to the window broken that I've described the defence previously relying upon, and the evidence of the time for Mr Marshall to respond to try to right himself. Of Mr Marshall [sic Mr Schmidt] in his first statement to the police where he acknowledged in his evidence that that was the truth, even although he subsequently sought to explain himself. And of the video from outside the OBH of the glass flying out followed a short, a very short time later by the tragic sight of Mr Marshall falling out (ts 899 - 901).

54 It is significant to note the level of generality at which these directions were given. No attempt was made to identify the bodily injury which the jury might find Mr Schmidt intended to cause, or as to the manner in which the jury might find Mr Schmidt intended to cause Mr Marshall bodily injury. No direction was given to the effect that unless the jury was satisfied beyond reasonable doubt that Mr Schmidt intended to propel Mr Marshall's body into the window with sufficient force to break the window, there was no other way open on the evidence by which it could be reasonably concluded that Mr Schmidt intended to cause bodily injury to Mr Marshall of such a nature as to satisfy the necessary element of the offence of murder.

55 After the jury had retired, counsel for each of the prosecution and the defence raised matters upon which redirections were sought. In that context, junior counsel for Mr Schmidt, Mr Watters, sought a redirection on the subject of intent. He submitted:

[W]hat the State's case here is that there's a need for the jury to be clearly told that the bodily injury here on our facts is not the push. But the bodily injury is the bodily injury that the deceased would suffer as a result of going out of the window and striking the footpath. And the State's case here is that there was an intention for the deceased to go out the window. And where one has particular regard to the State's case as opened and closed, that would appear to be their case. They closed it very strongly at the bottom of page 796 of the transcript, where my learned friend said - what there wasn't time for of course, we say, is any tumbling or stumbling or anything of that nature. You see, what the accused did is he didn't just push him towards the window. He pushed him at it, into it and through it. There is no room, we'd submit, for any other conclusion in this case (ts 916).

56 Junior counsel then referred to references in the opening address of prosecuting counsel which were said to support the proposition that the State case had always been put on the basis that the relevant intent was an intent to cause injury by pushing Mr Marshall through the window.

57 After referring to the decision in Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91, junior counsel submitted:

[W]hat we would say on our facts is that it must be shown that the accused intended the deceased to go through the window. Otherwise he would never suffer such bodily injury from a mere push (ts 917).

58 Junior counsel went on to submit that the jury should be directed that the prosecution case was put on the basis that Mr Schmidt intended to cause the bodily injuries which occurred when Mr Marshall struck the footpath below. The submission concluded in the following terms:

[W]e say here that the jury need to be told that on the facts of this case that the bodily injury is not the push. The bodily injury is what occurred afterwards (ts 918).

59 Because of the importance to the issues in this appeal of the interchange between prosecuting counsel and the trial judge which followed that submission, it is appropriate to set that interchange out in full:

FORRESTER, MS: Your Honour, I take some objection to the way my learned friends have characterised the State's closing. The State made it extremely clear that the bodily injury intended was to be caused as a result of a push in the environment in which is it was undertaken, that is, concrete, brick, glass. That Mr Banning's evidence in that regard is connected in the sense that the push was hard enough that he would have fallen to the ground and that the accused himself foresaw that an assault can indeed cause all sorts of injury. But indeed can also kill.

FORRESTER, MS: We said this at page 810. That was in relation to whether the death was an accident or not, but the whole case is - the State doesn't need to prove the circumstances that actually occurred. The State needs to prove that the event is the death. And in relation to this element; that is, of bodily injury and of such a nature as to endanger or be likely to endanger life, the State says at page 814: What he did do, the State says - - and this is about half-way down the page. And I discuss it all the way through page 814, but half-way down the page I say, about midway through that paragraph: What he did do, the State says, is intentionally push him into - - and it's missed the word "that" - - window intending to hurt him and the way he intended to hurt him..........was of that nature. Now, there is no authority and the State has not run its case on the basis that we have to prove that the bodily injury was in fact that he pushed him out of the window and landed on the pavement, and he intended to cause him the injury by his landing on the pavement. By the push he intended to cause him a bodily injury. The State need not specify that injury. It simply needs to prove the next element, which is the nature of that injury was of such a nature as to endanger life or be likely to endanger life. So we would submit that your Honour did direct in relation to that and indeed it was in accordance with the document that my learned friends had viewed prior to it being provided to you and they had no comments in relation to it.

SIMMONDS J: Yes, I've thought about that.

FORRESTER, MS: I mean, obviously.

SIMMONDS J: I think to be fair to your friend, what your friend was saying was that the - with respect, he was putting to me the proposition that I hadn't directed on the State case as the State case had been made. It seems to me that that was indeed the - my endeavour was to put it to them in terms of the State case being made. It might indeed be appropriate for me to pick up on the paragraph that is the third complete paragraph on page 814: The State's case is that he intended to push him into the window, intending to hurt him - - which aligns, in my reading of it, with the passage on which your friend - to which your friend referred, the bottom of page 796: And he didn't just push him towards the window - - as in a tumble falling short of the window - - he pushed him at it - into it and through it. The 'through it' is the only bit that might conceivably go a bit further, but that might be explained as the mechanism of 'hurt'. The mechanism of 'hurt' could include being injured by shards of glass, without necessarily falling through, or the risk, which matured in the event, that it'll be more than shards of glass, it's actually falling through the window onto the pavement.

FORRESTER, MS: We also put it though as impact. And your Honour summarised in some detail the respective cases in this - in relation to this element.

SIMMONDS J: Yes.

FORRESTER, MS: I've written a number of them down. And in relation to the other environmental factors, like the concrete pillars, the brick floors.

SIMMONDS J: Yes.

FORRESTER, MS: Those are all factors. He intended to hurt him, to cause a bodily injury by that contact.

SIMMONDS J: By - - -

FORRESTER, MS: The fact that he pushed him at the window is not so much intent, but what he actually did. The intent is something - - -

SIMMONDS J: Yes, but from which it might be then inferred that he intended to do what - yes. All right.

FORRESTER, MS: Yes.

SIMMONDS J: All right.

FORRESTER, MS: I don't have a difficulty, by the way, if my learned friends seek a redirection in relation to those two elements because, obviously, they are significant issues in this trial.

SIMMONDS J: Indeed they are.

FORRESTER, MS: But I do object to the characterisation of the State's case as bodily harm by way of hitting the footpath (ts 918 - 920).

60 This interchange reinforces the conclusion which I have drawn from the terms of the prosecutor's opening and closing addresses - namely, that while the prosecution case included the proposition that Mr Schmidt manfiested an intention to cause bodily injury by pushing Mr Marshall into the window so as to cause the window to break, the State case was not so limited and extended to an intention to cause bodily injury in some other unspecified way as a result of the push occurring in proximity 'to the other environmental factors, like the concrete pillars, the brick floors' (ts 920).

61 The trial judge recalled the jury from their deliberations and gave redirections on a number of topics. On the subject of Mr Schmidt's intention, the following redirection was given:

The final and fifth point has to do with what you will have appreciated, given the amount of attention it received in counsel's closings, both prosecution and defence, was the matter of intention. The intention to cause bodily injury is so critical. That is one the elements, critical in that sense, in relation to the offence of murder. Now, the State case, you'll recall, I described as I did. I shall give you a little more detail about it and I shall also give you a little more detail about the defence case in relation to the same subject matter. The State case was that the accused, Mr Schmidt, pushed the deceased into the window intending to hurt him. The accused did that intending to hurt him and matters relevant to that were as you'll remember the prosecution indicated. The injury, of course, must also satisfy the other requirement that it was such a nature that it endangered his life, or was likely to do so. And you'll remember how I directed you on that. What the defence says must also be a matter that you think about, again in the same way you think about what the prosecution case was, to assist, if it does, as I've indicated. The defence case was of course that the accused did not intend any harm. And the defence case draws your attention to the evidence of the accused that he did not intend to push so hard at Mr Marshall as to push him through the window. That indeed the accused was not paying any attention to his surroundings at the time he pushed at Mr Marshall to fend him off and in particular wasn't paying any attention to the window and its location relative to where the accused was pushing Mr Marshall. So those matters are borne in mind together. The evidence upon which the prosecution relies for the case they put and what the defendant says in relation to that case (ts 929).

62 It will be observed that the redirection was not given in the terms sought by counsel for Mr Schmidt. In substance, the redirection was no more specific than the direction which had already been given, and only varied from that direction by a specific reference to the evidence given by Mr Schmidt as to his intention at the time of the push; that he did not intend to push Mr Marshall through the window.

63 After the jury had been deliberating for some time, a question was delivered to the trial judge in the following terms:

Could we please have a further clarification on the elements within the charge of murder and manslaughter, specifically unlawful killing, and the fourth element of murder. Our preference would be to have these clarifications in writing to allow us to refer at will (ts 949).

64 The trial judge advised counsel that he was uncertain as to precisely what the jury required. As a result, the trial judge recalled the jury and first asked whether they wanted a description of all the elements of murder and manslaughter, or only the matters specifically identified: namely the element of unlawful killing and the objective likelihood of Mr Schmidt's intended bodily injury causing Mr Marshall's death. The forewoman of the jury responded that it was only the two specific points in the question upon which the jury required clarification.

65 The trial judge responded by foreshadowing a repetition of the directions he had previously given on those topics. In response, the forewoman asked:

Is there an ultimate way of explaining it, is our question (ts 958)?

66 The trial judge responded with the assertion that it was not clear what they were uncertain about in relation to the elements they had identified. He suggested that the jury might like to return to the jury room and consider whether greater specificity could be provided. The jury retired, and then provided the trial judge with a question in the following terms:

Can you please 'repeat' your definitions of the elements of murder (ts 961)?

67 In response to that question, the trial judge recalled the jury and read to them the transcript of his previous direction on what he had described as the four elements of murder.

68 It seems clear from the initial form of the question from the jury, and from the forewoman's response to the question posed by the trial judge, that the jury were having difficulty comprehending the directions they had been given in relation to accident and in relation to the aspect of intention which required the bodily injury intended by Mr Schmidt to be of such a nature as to endanger, or be likely to endanger Mr Marshall's life in order to sustain a conviction of murder. Given the generality in which the terms of the previous directions had been cast, this is, with respect, not surprising. However, after the trial judge suggested that he would repeat his earlier directions, in the result, that was all the jury requested, and that was all they received.

69 Later in the day the jury returned a verdict of guilty of murder.

70 As I have foreshadowed, because the appeal against conviction should be allowed and a retrial ordered, it is neither necessary nor appropriate to consider Mr Schmidt's appeal against sentence. However, the course of the sentencing hearing sheds light on the difficulties created by the way in which the trial was conducted and the manner in which the issues were left to the jury.

71 Prior to the sentencing hearing, the parties filed written submissions. The written submissions filed on behalf of the prosecution include the following submissions:

1. By their verdict, the jury must have been satisfied beyond reasonable doubt:

1. That the death of Mr Marshall was foreseen by the offender, or reasonably foreseeable by an ordinary person; 2. That the offender, by his actions, intended an injury to Mr Marshall;

1. That the injury intended by the offender was objectively of such a nature as to endanger Mr Marshall's life or be likely to endanger his life.
2. The accused, in his evidence, admitted that:

1. He saw himself as a 150kg man with a lot of muscle 2. That he could bench press at least 200kg and squat press 300kg, with an ability 2-3 weeks before the offence to do 6-8 repetitions of a 170kg bench press

1. He was '...just a bit annoyed' when he pushed Mr Marshall

1. He couldn't say how hard he pushed Mr Marshall but it wasn't 'overly dramatic' 2. His intention was for Mr Marshall to go away 3. As at 8 May 2011 he was 'very strong' 4. He pushed Mr Marshall with 'a bit more than a medium push'
2. The State acknowledges that it could not be proven beyond reasonable doubt that the offender pushed Mr Marshall with the specific intention of him going through the window. However:

1. the surroundings in which he pushed Mr Marshall; 2. the direction in which he pushed him;

1. the force with which he pushed him (and must have pushed him, having regard to the expert evidence);

1. the fact that he was well aware of the force he was capable of applying;

all demonstrate, as the jury must have found, that the offender did, contrary to his evidence, intend to cause bodily injury to Mr Marshall and that the injury intended to be done was of such a nature as to be likely to endanger Mr Marshall's life or be likely to do so.

72 Two points must be noted arising from these submissions. First, the filing and service of this written submission appears to be the first occasion upon which the prosecution adopted the position that it could not be proven beyond reasonable doubt that Mr Schmidt pushed Mr Marshall with the intention of him going through the window and falling to the pavement below. Having regard to the terms of the prosecutor's opening and closing addresses which I have identified, it is clear that during the trial, the prosecution did not disavow the proposition that the jury might find that Mr Schmidt's intention was to push Mr Marshall through the window causing him to fall to the pavement below. No explanation for this change of position has been proffered.

73 Second, the concession made by the prosecution for the purposes of sentence leaves no identifiable basis upon which the jury's verdict of guilty of murder could be sustained. That proposition is perhaps best illustrated by asking rhetorically: if Mr Schmidt did not intend to push Mr Marshall into the window such that it broke, what was the bodily injury which Mr Schmidt intended to cause Mr Marshall, in what manner was it intended by Mr Schmidt that the injury be caused, and how could it reasonably be concluded that the injury which Mr Schmidt intended to cause was of such a nature as to endanger or be likely to endanger the life of Mr Marshall?

74 At no point during the trial or, as will be seen, during the sentencing hearing, did the prosecution endeavour to answer those questions. The closest the prosecutor got, at any point, to addressing those issues was her assertion that the push took place in proximity to concrete, bricks and glass. The fact that Mr Schmidt pushed Mr Marshall in such an environment is, of course, relevant to the foreseeability of harmful consequences possibly flowing from the push, and the prosecutor cross-examined to that effect. However, the issue relating to the subjective intention of Mr Schmidt is, in the circumstances of this case, rather different to the issue of foreseeability of harm.

75 The trial was correctly conducted on the basis that the issue of intention required the jury to form a view as to the state of Mr Schmidt's mind at the time of the push, and as to whether he intended to cause Mr Marshall bodily injury. In the circumstances of this case, the nature of the injury, if any, which Mr Schmidt intended to cause, cannot be divorced from the manner in which Mr Schmidt intended that bodily injury would be caused to Mr Marshall. It is clear that the impact of Mr Schmidt's hands on Mr Marshall's body could not, of itself, been intended to cause, or even be likely to cause, bodily injury of the requisite character. Any hypothesis consistent with guilt required the jury to be satisfied beyond reasonable doubt that Mr Schmidt intended that his push would cause Mr Marshall to impact with some other feature of the environment which would cause an injury of the requisite character. In the context of this case, if an impact causing the window to break is excluded from consideration, the jury would have to have been satisfied that Mr Schmidt intended (not merely foresaw as a possibility), that Mr Marshall strike his head or perhaps some other part of his body on a concrete pillar, or the floor, or the glass (without breaking it) with such force as to cause a bodily injury which was of such a nature (objectively assessed) as to endanger or be likely to endanger his life. That proposition was never specifically put at any point by the prosecutor during her opening or closing address, nor was it put to Mr Schmidt in cross-examination. Nor, for that matter is it a proposition that was reasonably open on the evidence.

76 If an intention to propel Mr Marshall into the window with sufficient force to cause the glass to break, thereby creating a risk of bodily injury from either the broken glass or a fall to the pavement below is excluded, any other form of bodily injury, or mechanism by which such bodily injury could be caused, while perhaps possible and therefore foreseeable, was not so obvious or probable as to sustain an inference beyond reasonable doubt to the effect that Mr Schmidt intended to cause an injury of such a nature as to endanger or be likely to endanger Mr Marshall's life by such a mechanism.

77 It is appropriate to digress to consider, at a general level, the distinction between foreseeability and intent, and the relationship between those two concepts. In the context of criminal proceedings, foreseeability is relevant to the assessment of whether an event has occurred by accident, with the result that a person is not criminally responsible for that event (Criminal Code (WA) (the Code), s 23B). If the prosecution establishes that the accused foresaw, or that a reasonable person in the position of the accused would have foreseen that a possible consequence of his or her actions was the event which in fact occurred, accident will have been excluded. When intent is a specific element of an offence, such as the offence of murder created by s 279(1)(b) of the Code, the prosecution must establish that the accused subjectively intended to procure a particular result - namely, a bodily injury of the requisite character as a consequence of his or her actions. So, in many respects foreseeability and intent are quite different concepts.

78 However, the concepts are also related in a practical sense. If an event is not foreseeable, it cannot have been intended by the accused, by definition. Conversely, the fact that an event was foreseeable, will not, of itself, compel the conclusion that it was intended. But if the event was the obvious and probable consequence of the actions of the accused, an inference of intent may be drawn.

79 To take an obvious example, if a person deliberately fires a gun at the head of another at close range, or stabs another in the upper body on multiple occasions, the consequences of those actions are so obvious and probable, that an inference that those consequences were intended can readily be drawn. At the other end of the spectrum, a single punch to the head has often been viewed by juries as not giving rise to the foreseeable consequence of death, let alone the intended consequence of death, which is the reason the legislature created the offence of unlawful assault causing death (s 281 of the Code). The distinction between these examples turns upon the extent to which the event which occurred was the obvious and probable consequence of the actions of the accused. The mere fact that the event was a possible consequence of the actions of the accused will not ordinarily of itself sustain an inference that it was the intended consequence, although the more obvious and probable that the event would be a consequence of the actions of the accused, the more readily an inference of intent can be drawn.

80 If the consequences which would likely flow from Mr Marshall being propelled through the window are excluded from consideration, the prospect of Mr Marshall suffering an injury which would endanger or be likely to endanger his life as a consequence of being pushed in the chest in the vicinity of hard and fixed objects was not so obvious or probable as to be capable of sustaining an inference that he intended to cause such an injury.

81 The difficulties created by the prosecution's change of position with respect to the Mr Schmidt's intent at the time of sentence are apparent in the following interchange between the prosecutor and the trial judge during the course of the sentencing hearing:

SIMMONDS J: All right. Just one moment. I take it that the state does accept for the purpose of the sentencing that there is no finding it would press me to make that Mr Schmidt was aware of the life-threatening character of what would happen at the collision of Mr Marshall with the window?

FORRESTER, MS: In the sense, your Honour, that the state does not allege that he actively intended to push Mr Marshall out of the window.

SIMMONDS J: I'm going a little further than that, Ms Forrester.

FORRESTER, MS: Yes.

SIMMONDS J: The point I'm reaching is that it is not contended by the state that on the evidence I should find - and I believe the matter would be one of aggravation, so it would be one I would have to find beyond a reasonable doubt - that Mr Schmidt was aware that when Mr Marshall hit the glass there was a risk that his life would be threatened in some way by that hit, whether going through the glass or otherwise.

FORRESTER, MS: Can I - and I mean no disrespect - my query is this: if your Honour is requesting information as to what we call the fourth element in the course of the trial in relation to the fact that Mr Schmidt did intend an injury and objectively - - -

SIMMONDS J: No.

FORRESTER, MS: Well, accident has been disproven, so there was - - -

SIMMONDS J: I realise that, and I appreciate that the distinction I'm asking you to draw is a very, very fine one indeed, but you may be aware I have recently had pressed on me in respect of a form of murder like this in respect of another offender, and in fact that led to a trial on the issues, whether notwithstanding there was no intent to kill, the offender should be seen by virtue of the circumstances or otherwise to have an awareness of the risky character - the life-threateningly risky character of what was involved.

SIMMONDS J: It seems to me that all the 279(1)(b) requirement - or form of murder involves is an intent to do an injury. It does not involve, by that fact alone, awareness or intention. Awareness will fairly straightforwardly lead to a finding of intention, I can see, but it is, it seems to me, short of a finding of intention, which takes me back to my original question.

FORRESTER, MS: Your Honour, perhaps I can say this. In terms of awareness, the offender gave evidence at his trial that he was aware of the dangers of assaults in such circumstances, very aware of them, and I can take your Honour to particular pages.

SIMMONDS J: If you would.

FORRESTER, MS: If I might have a moment, your Honour.

SIMMONDS J: Yes.

FORRESTER, MS: At the commencement, your Honour, of his evidence - sorry, at the commencement of cross-examination, your Honour, he is asked - - -

SIMMONDS J: Perhaps if you - - -

FORRESTER, MS: Page 695.

SIMMONDS J: Thank you.

FORRESTER, MS: Sorry, your Honour, at page 695 he was asked about his training in relation to rugby league, kick-boxing and boxing. He was asked this in relation to his training as a bouncer:

FORRESTER, MS: And as part of the training was it drilled into you that assaults are dangerous?---Yes, it was.

FORRESTER, MS: And that there are lots of things that can happen as a result of an assault upon any person?---Yes.

FORRESTER, MS: You also knew full well from that stint as a crowd controller or a bouncer that once alcohol is involved in assaults pretty much anything can happen?---That's right.

FORRESTER, MS: Then I asked him about drugs, which perhaps didn't take it any further. I returned to that at the conclusion of cross-examination, your Honour, and this appears at page 730 where it was said to him:

FORRESTER, MS: And yet you knew that assaulting someone could do all sorts of harm in a general sense?---Yes, I did.

FORRESTER, MS: You knew that?---But at the time of the incident I wasn't thinking about anything like that.

FORRESTER, MS: About doing?---I wasn't thinking of hurting, not at all.

FORRESTER, MS: You knew that assaulting someone can kill them, didn't you?---I did know that, yes, assaulting someone can lead to someone dying.

FORRESTER, MS: That's the extent of the awareness, your Honour, and we appreciate that it is in a general sense.

SIMMONDS J: Yes.

FORRESTER, MS: But that is the extent of the evidence in relation to that. That of course is different to the intention, as your Honour has quite clearly set out, so that's the extent to which the state puts it.

SIMMONDS J: Which is to draw, if I may say so, a still further and fine distinction from the state of the evidence as I was asking you about. All right, that's helpful. So that the focus, the state says, should be by me on pages 695 and 730 together with all the other evidence (sentencing ts 56 - 59).

82 With respect, this interchange eloquently reveals the confusion which had emerged between the issue of foreseeability, which was relevant to the question of accident, and the issue of intention. This confusion is also manifest in the remarks made by the trial judge at the time of passing sentence, which include the following (The State of Western Australia v Schmidt [2012] WASCSR 151):

I would conclude that broadly the awareness of an offender who has offended as described in s 279(1)(b) - that is to say, your form of murder - that an action of theirs that inflicted the injury objectively endangered or was likely to endanger life - what I broadly call life-threatening injury - as opposed to not being aware of the life-threatening character of the injury is, other things being equal, to be more seriously regarded.

Here I do not consider that it was put to me you were aware that the pushing in this case and the injury from it the jury found you intended was of a character that was life-threatening. I do not consider that the jury's verdict involved any finding of such awareness. I consider you should be sentenced on the basis you were not so aware and that the lack of awareness is to be less seriously regarded, other things being equal. However, it is a matter of degrees of seriousness, not lack of seriousness.

...

Turning then to the circumstances of the offending, it is important I determine as precisely as I can the intention with which you acted, and I have already said most of what I need to say on that account. I note in particular that you intended to cause Mr Marshall an injury when you pushed him in the way relative to the window in the upstairs bar of the licensed premises the Ocean Beach Hotel as I consider the jury must have found in pronouncing the verdict that they did.

That way involved the application of force as the expert who testified at the trial, Dr James, testified to. The injury was that which Mr Marshall would have sustained from a collision under the impact of that force with the window.

I consider that the jury must have found that you were aware of the force you were capable of applying and the force which you did apply in the environment involving a window not far behind Mr Marshall, even although such force could be more easily applied by a man of your size and physical capabilities than by a man of lesser size and lesser physical capabilities.

...

I consider on the evidence, particularly that of Dr James and the verdict of the jury, that you pushed Mr Marshall with substantial force with the intention of causing him injury from a resultant collision with the window. I am satisfied that you did not intend to push him through the window and, as I have said, you were not aware when you pushed him that the injury you intended to cause him was life-threatening.

At the same time you were aware of the direction in which you were pushing him, the surroundings in which you were pushing him and the force you were using. However, there was no premeditation or planning in the events that happened. Rather, I find the push you gave Mr Marshall was a spur of the moment matter [34] - [49].

83 With respect, these observations beg the rhetorical questions I have posed above [73]. If, as the State conceded for the purposes of sentence, and the trial judge found, Mr Schmidt did not intend to push Mr Marshall through the window, and if, as the trial judge found, Mr Schmidt was not aware at the time he pushed Mr Marshall that the injury he intended to cause was life-threatening, what was the bodily injury which Mr Schmidt intended to cause at the time he pushed Mr Marshall, what was the mechanism by which he intended the injury to be caused, and how can it reasonably be concluded that the injury intended by Mr Schmidt was of such a nature as to endanger or be likely to endanger the life of Mr Marshall?

84 It seems from the observations of the trial judge at the time of sentence that he passed sentence on the basis that Mr Schmidt intended to push Mr Marshall into the window, but not with the intention that he break the window. If that is the correct construction of his Honour's observations, it is impossible to see how that conclusion is consistent with the jury's verdict of guilty of murder. An intention on the part of Mr Schmidt to push Mr Marshall into the window without breaking it is not capable of sustaining an inference that Mr Schmidt intended to cause Mr Marshall bodily injury of such a nature, objectively assessed, as to endanger or be likely to endanger Mr Marshall's life.

85 While it is always possible, and therefore perhaps foreseeable, that a person pushed into a hard object may sustain bodily injury, in the circumstances of this case, the prospect of Mr Marshall suffering bodily injury of such a nature as to endanger or be likely to endanger his life by striking the window without breaking it was not so obvious or probable as to be capable of sustaining, beyond reasonable doubt, a subjective intention to cause bodily injury of such a nature as to satisfy the necessary element of the offence of murder.

86 There are three grounds of appeal against conviction. During oral argument, each counsel first addressed ground 2, and it is convenient to follow a similar course in these reasons.

87 Ground 2 asserts that the trial judge erred by misdirecting the jury as to s 279(1)(b) of the Code. Particulars to the ground assert that:

The learned trial judge misdirected the jury as to the effect of s 279(1)(b) of the Criminal Code by directing the jury as to 'the element of bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed' that 'it's not required that the accused knew the injury intended was of this nature'.

88 Expressed in these terms, the ground and its particulars fail to capture the essence of the misdirection which was identified in the written submissions filed in support of the grounds of appeal, and developed during oral argument. Counsel for the respondent on the appeal made no objection to the ground being construed so as to encompass the broader argument advanced in support of the ground, which includes the deficiency to which I have already referred - namely, the failure to identify with any precision the bodily injury or manner of bodily injury which, on the evidence, it was open to the jury to find Mr Schmidt intended to cause, in order that the jury might then objectively assess whether that bodily injury was of such a nature as to endanger or be likely to endanger Mr Marshall's life. Counsel for the appellant confirmed that the ground was intended to encompass the proposition advanced by junior counsel for Mr Schmidt when he sought a redirection on the issue of intention, and I will construe the ground in that way.

The proper construction and application of s 279(1)(b)

89 Section 279(1) of the Code provides that if a person unlawfully kills another person and:

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person ...

the person is guilty of murder.

90 The proper construction of s 279(1)(b) was considered by this court in Wongawol. After referring to the decision of the High Court in Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387, McLure P (Buss JA & Mazza J agreeing) observed:

In my view, the natural and ordinary meaning of the text of s 279(1)(b) does not support a wholly subjective construction; that is, one that requires an intention to cause bodily injuries as well as an intention that those injuries endanger life or be likely to endanger life. That is most obviously so in relation to the second limb which contains language (likely to endanger) which suggests an objective requirement. Further, the notion of 'endangering life' is concerned with the potential for, or risk of, death. A requirement of intention does not sit comfortably with potential and uncertain outcomes, the risk of which can vary from a threshold of 'a substantial, real and not remote' chance of death. Moreover, a person cannot intend a result if they are not aware that the bodily injuries intentionally inflicted would, or could, endanger life. This is reflected in the formulation of the wholly subjective test in Charlie v The Queen which recasts the statutory language in terms of knowledge or awareness of the potential consequences of the intended bodily injuries.

The expression 'of such a nature' as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect. That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life, or would be likely to endanger life.

This construction of s 279(1)(b) of the Code is consistent with the decision of the High Court in Charlie v The Queen on statutory language that is not materially different and with the extrinsic material on which s 279(1)(b) is based. It is clear from the nature of the changes to the statutory text that the legislature did not intend to change the former law relating to murder except to the extent recommended by the Commission [24] - [26].

91 In the course of argument during the hearing of this appeal, attention was drawn to the observations made by Callinan J in Charlie (see [76]) in order to support the proposition that the only component of s 279(1)(b) which was to be objectively assessed was that part which related to an injury which would be likely to endanger life, and that the component of the section relating to the actual endangerment of life was to be subjectively assessed. It is, strictly speaking, unnecessary to resolve that contention for the purposes of this appeal. However, it is clear from the terminology used in Wongawol (see especially [25]) that the court unanimously concluded that s 279(1)(b) was to be construed on the basis that both endangerment to life and the likelihood of endangerment to life are to be objectively assessed. I see no reason to reopen or to doubt the correctness of that conclusion, with which I respectfully agree.

92 It is therefore clear that before a person can be convicted of murder on the basis of the intention specified in s 279(1)(b), the prosecution must establish beyond reasonable doubt that the accused subjectively intended to cause a bodily injury, and that the bodily injury which the accused intended to cause was of such a nature, objectively assessed, as to endanger or be likely to endanger the life of the person killed or another person. The trial judge correctly directed the jury in these terms.

93 In the course of argument on behalf of Mr Schmidt, it was submitted that the error of the trial judge was in failing to 'connect the two limbs of the test' posed by the subsection. With respect, this submission misconstrues the subsection in the same way as the directions given by the trial judge in this case, when he put to the jury that, in effect, the subsection created two distinct elements of the offence of murder.

94 Section 279(1)(b) contains only one element. It is the element of intention. It requires that before an accused person is guilty of the offence, it must be established that he or she had an intention to cause a bodily injury of a particular nature. The nature of the injury which an accused person must intend to cause in order to be guilty of murder does not give rise to an additional element of the offence of murder, or create a second limb of the subsection. Rather, it qualifies and defines the range of injuries intended by an accused which must be established in order to prove the offence.

95 When s 279(1)(b) is engaged, it poses a single question for the tribunal of fact. That question is whether the person who has unlawfully killed another has been shown to have intended to cause a bodily injury of a particular nature. The fact that the nature of the injury is to be assessed objectively, rather than by reference to the knowledge or intention of the accused, does not detract from the fundamental nature of the question posed by the subsection, which concerns the subjective intent of the accused. There is no question of a nexus or connection between discrete aspects or elements of the subsection, as it poses only one issue - the subjective intent of the accused.

96 When the section comes to be applied, and in particular when a trial judge is required to direct the jury as to the manner of its application, much will, of course, depend upon the circumstances of the case. However, in every case, the tribunal of fact must have the capacity to determine whether the accused subjectively intended to cause a bodily injury of such a nature as to satisfy this element of the offence of murder. The degree of particularity required, with respect to the nature or manner of the injury intended by the accused, will depend upon the circumstances of the case.

97 In many cases, the nature of the injury actually caused by the intentional acts of the accused, or the manner in which injury was caused, will avert the need for specificity as to the nature of the injury intended to be caused. To give some obvious examples, if an accused aims and fires a loaded gun at the upper body or head of the deceased from close proximity, it would not normally be necessary to specify with any greater particularity which part of the body the accused intended that the bullet would strike and injure. Similarly, if a person pushes another from the top of a tall building, or in front of a fast train, or deliberately drives a motor vehicle at speed at a pedestrian, it will not be necessary to particularise the precise form of injury intended by the accused, as the nature of the injury intended can be readily inferred from the manner in which the injury was intended to be caused.

98 However, there will be other cases, and this is one, in which this element of the offence of murder cannot be meaningfully assessed without attention being directed to the nature of the injury intended to be caused, which will usually require attention to be directed to the manner in which the accused intended the injury to be caused. In some cases, specification of the manner in which the accused intended the injury to be caused will enable the issue posed by the subsection to be resolved without further specificity in relation to the precise injury intended. For example, in this case, if the prosecution case in support of the charge of murder had been brought on the sole basis that Mr Schmidt intended to cause Mr Marshall bodily injury by propelling him into the window with sufficient force to break the window, the nature of the injuries likely to be caused, either by reason of forceful contact with broken glass, or by falling to the pavement below would have been sufficient to enable the objective nature of the injuries intended by Mr Schmidt to be assessed in terms of the endangerment of his life, or the likelihood of his life being endangered without the need for further specificity. However, as I have pointed out, the prosecution case was not so constrained and, indeed, by the time of sentencing, this aspect of the prosecution case had been expressly disavowed.

99 Because of the generality with which the prosecution case was conducted, before the jury could meaningfully apply the directions they were given in relation to the element of intent necessary to sustain a conviction for murder, it was necessary to identify with some particularity either the bodily injury which it was open to find Mr Schmidt intended to cause, or at the very least, the manner or mechanism by which Mr Schmidt intended to cause that injury. Without those matters being identified, it was impossible for the jury to assess whether any injury which they found Mr Schmidt intended to cause was of such a nature as to satisfy the necessary element of the offence of murder.

100 Further, on the evidence which was adduced in this case, as I have already observed [75], unless the jury were satisfied beyond reasonable doubt that Mr Schmidt intended to propel Mr Marshall into the window with sufficient force to break it, it would not have been open to the jury to conclude, beyond reasonable doubt that Mr Schmidt intended to cause Mr Marshall a bodily injury of a nature sufficient to satisfy the necessary element of the offence of murder by any other means. At the risk of repetition, acceptance of the proposition that a forceful push in an environment of hard and fixed surfaces creates a risk of possible injury or death is not to be equated with the question of whether Mr Schmidt subjectively intended to cause Mr Marshall bodily injury of such a nature as to endanger or be likely to endanger his life by propelling him into a hard and fixed object such as a wall or a floor. There was simply insufficient evidence to sustain an inference, beyond reasonable doubt, to the effect that Mr Marshall intended to cause such an injury by such a means.

101 In the circumstances of this case, the submission made by junior counsel for Mr Schmidt after the jury had retired to the effect that the jury should be redirected that they could only convict Mr Schmidt of murder if they were satisfied beyond reasonable doubt that he intended to propel Mr Marshall into the window with sufficient force to break it was correct and should have been accepted by the trial judge. This is one of those cases in which, notwithstanding the discretion conferred by s 112 of the Criminal Procedure Act 2004 (WA), the interests of justice required the trial judge to direct the jury not only as to the law, but also to identify the facts which were relevant to the legal principles which they were required to apply (see The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 [137] (Miller JA); Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar & Kito JJ)).

102 More particularly, the generality with which the prosecution case was presented, and the inferences reasonably open to the jury on the evidence which had been adduced, required the trial judge to direct the jury that they could only be satisfied that the element of intention necessary to sustain a conviction of murder was established if they were satisfied beyond reasonable doubt that Mr Schmidt intended to propel Mr Marshall into the window with sufficient force to break it, creating the prospect of serious injury from either the broken glass or by falling to the pavement below.

103 The failure to give that direction gave rise to a miscarriage of justice, by creating the appreciable risk that the jury may have reasoned to a conclusion of guilt without being satisfied that Mr Schmidt intended to propel Mr Marshall into the window with sufficient force to break it and thereby cause serious injury. The significance of that risk is amply demonstrated by the course of the sentencing hearing, during which the prosecution expressly disavowed proof of an intention of that kind, and the trial judge sentenced Mr Schmidt on the basis that he had no such intention. For these reasons, ground 2 must be allowed and the conviction set aside. I will return to the question of the orders properly made to give effect to that conclusion after considering the other grounds of appeal against conviction.

104 Ground 1 asserts that the jury's verdict was unreasonable and cannot be supported, having regard to the evidence adduced at trial. Particulars given in support of the ground make clear that the evidence adduced at trial is said to be insufficient to sustain a conviction for murder in two respects:

(a) the evidence did not exclude accident beyond reasonable doubt; and

(b) the evidence was not capable of sustaining beyond reasonable doubt the conclusion that Mr Schmidt had the intention necessary to sustain a conviction for murder.

105 This ground of appeal is different in character to the previous ground which I have considered, in that quite different consequences would follow from its success. If it was concluded that the evidence had not established to the requisite standard that Mr Marshall's death was not an accident (in the sense in which that term is used in the context of the Code), the appropriate order would be to substitute Mr Schmidt's conviction with a verdict of acquittal. Or, if it were concluded that although the evidence was capable of excluding accident, it was not reasonably open to the jury to find that Mr Schmidt had the intention necessary to sustain a conviction for murder, it could be cogently argued that the proper order to give effect to that conclusion would be to set aside the conviction for murder and instead substitute a conviction for manslaughter.

106 Notwithstanding the different consequences of success on this ground, it can be disposed of quite shortly.

107 As I have noted, the trial was conducted on the basis that Mr Schmidt admitted pushing Mr Marshall, and that the consequence of the push was that Mr Marshall fell through the window to his death. Those facts were amply established on the evidence. There was also evidence capable of sustaining the conclusion that a significant amount of force was used by Mr Schmidt when he pushed Mr Marshall, and that the push occurred in close proximity (perhaps less than 1 metre), and in the direction of a large glass window on the first floor of a building. The evidence was quite capable of sustaining a conclusion that Mr Schmidt intended the consequences of his actions, which were to propel Mr Marshall into the window with sufficient force to break it, thereby exposing him to the risk of serious injury either from the broken glass or, as it happened, from the fall to the footpath below. If the jury were to be satisfied beyond reasonable doubt that this was Mr Schmidt's intention at the time he pushed Mr Marshall, it would be open to conclude that the intent necessary to sustain a conviction of murder was present. And, of course, if it was open to the jury to find that Mr Schmidt intended to push Mr Marshall through the window, it necessarily follows that it was open to the jury to conclude that the prosecution had established that Mr Marshall's death did not occur by accident, in the legal sense.

108 This relatively brief process of reasoning is sufficient to dispose of ground 1. When it was put to senior counsel for the appellant during the course of argument, he did not contend otherwise.

109 Ground 3 asserts that the trial judge erred by failing 'to canvass adequately the defence case in his Honour's summing up'.

110 Since the decision in Pollock, there has been a tendency to suppose that the ground of appeal which succeeded in that case requires an appellate court to scrutinise the directions given by a trial judge in minute detail for the purpose of ascertaining whether precisely equal prominence was given to the defence case as to the prosecution case. No such proposition was established by Pollock. The legal principle to which effect was given in Pollock, is the principle that the directions given to a jury by a trial judge must contain sufficient information to enable the jury to evaluate the competing prosecution and defence cases [147] (Miller JA). (See also Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ)).

111 In this case, there was no contest as to the cause of Mr Marshall's death. As I have noted, senior counsel for Mr Schmidt opened the case on the basis that Mr Schmidt admitted pushing Mr Marshall, and that the push ultimately caused him to fall through the window to his death. The trial was conducted on the basis that the contentious issues in the case were accident and intent.

112 In the course of his directions on those issues, the trial judge referred to the competing positions of the prosecution and defence. It is true that he did so with economy of expression, but a review of those portions of the transcript does not sustain the conclusion that his identification of the salient features of the evidence relating to those issues lacked balance or were inadequate. Later in his address, he directed the jury to what he considered to be salient features of the evidence. As with the earlier portion of his directions, while the references to the evidence could be described as economical, they could not be described as unbalanced.

113 Apart from the deficiency in the directions given to the jury on the subject of intent, and to which I have referred in the context of ground 2, the directions given to the jury in this case were sufficient to enable them to evaluate the competing prosecution and defence cases. Ground 3 must be dismissed.

Appropriate orders to give effect to the success of ground 2

114 Obviously the success of ground 2 of the appeal against conviction requires that Mr Schmidt's conviction for murder be quashed. Less obvious, however, is the question of whether there should be a retrial and if so, whether the retrial should be subject to any restraint, and in particular, whether, having regard to the manner in which the prosecution case was conducted, Mr Schmidt should be acquitted of murder, but without any verdict being entered in respect of the alternative counts of manslaughter and unlawful assault causing death, leaving it open to the prosecution to retry Mr Schmidt on those counts only. Alternatively, it would be open to this court to substitute the conviction for murder with a conviction of some lesser offence.

115 Pursuant to s 30(5) of the Criminal Appeals Act 2004 (WA), when this court allows an appeal, it must either set aside the conviction of the offence from which the appeal is brought, or enter a judgment of acquittal or, in some circumstances, a conviction for another offence. The Criminal Appeals Act provides no express guidance as to the manner in which the powers conferred by that subsection should be exercised. However, it is well established that the power to order a retrial should not be exercised in such a way as to give the prosecution an opportunity to make a new case which was not made at the first trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518 (Dixon J)). It is equally well established that 'the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective' (King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 433 (Dawson J)).

116 The question of what constitutes a 'new case which was not made at the first trial' in this context was considered by the High Court in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232. In the view of Gleeson CJ and Callinan J, the reference to a 'new case' in this context 'must be to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it' [36]. In the same case, Gummow, Hayne, Heydon and Crennan JJ, after reviewing the authorities, concluded that there must be substantial differences between the prosecution case relied on in a first trial, and the case to be relied on in a second trial, 'if the difference is to stand as a bar to an order for a second trial' [67]. In their view, in that case there were not sufficient differences between the manner in which the prosecution case had been presented at the first trial, and the likely manner of the retrial to preclude a retrial, with the result that, by a majority (Gleeson CJ, Callinan and Kirby JJ dissenting) a retrial was ordered.

117 In applying these principles to the present circumstances, it is significant that, in the event of a retrial on the charge of murder, there is no reason to suppose that the evidence adduced by the prosecution would be any different. It follows from my view of the issues in this case that the basis upon which a conviction of murder could be sustained would have to be left to the jury by the trial judge in different terms to those used during the trial which has miscarried. However, it is of the utmost significance to the question of a retrial that the retrial would be conducted on a narrower basis than the original trial. Put another way, the proposition that the jury could find the intent necessary to sustain a conviction for murder on the basis that Mr Schmidt intended to propel Mr Marshall into the window with sufficient force to break the window was always part of the prosecution case prior to the verdict of the jury, notwithstanding that it was, for some inexplicable reason, disavowed at the time of sentence. During cross-examination the prosecutor put to Mr Schmidt that he had in fact pushed Mr Marshall through the window, and that Mr Schmidt had intended to hurt Mr Marshall, inferentially, at the time of the push. What was omitted from the cross-examination, and from the prosecutor's opening and closing addresses, was any specification of the nature of the injury which Mr Schmidt had intended to cause, or the means by which Mr Schmidt had intended to cause Mr Marshall injury, beyond the general reference to a push occurring in proximity to hard surfaces. The case which could be legitimately advanced by the prosecution on a retrial is therefore a subset of the case advanced at the first trial. This is not a case in which it could be said that a retrial would provide the prosecution with an opportunity to augment a deficient case advanced at the first trial - rather, the prosecution case would be narrowed so as to be brought within proper bounds. Accordingly, the case to be advanced by the prosecution on a retrial cannot be said to be a 'new case' in the sense in which that term was used by Gleeson CJ or Callinan J in Taufahema, nor could it be said to be a substantially different case in the sense in which that expression was used by the majority in Taufahema.

118 Relevant also to this issue are the public policy considerations identified by the majority in Taufahema - namely, the public interest in the due prosecution and conviction of offenders [49]. As their Honours observed, it is not in the public interest for cases brought against persons charged with serious crimes not to be pursued to finality because of technical errors made in the conduct of a trial.

119 Of course, I do not overlook the fact that during the course of the sentencing hearing, the prosecution explicitly acknowledged that 'it could not be proved beyond reasonable doubt that the offender pushed Mr Marshall with the specific intention of him going through the window'. However, as I have noted, that position was adopted for the first time after Mr Schmidt had been convicted, and was inconsistent with the way in which the case against him had been prosecuted. For that reason, this

belated concession, made following conviction, does not, of itself, preclude an order for a retrial.

120 For these reasons I have concluded that the appropriate order to give effect to the success of ground 2 of the appeal is to quash Mr Schmidt's conviction and order a retrial on the current indictment, which alleges murder. In light of this conclusion, it is neither necessary nor appropriate for me to consider whether the conviction of murder should be substituted by a conviction for some lesser offence. However, it follows from the reasons I have given that if the prosecution maintains the position with respect to intention put to the trial judge at the time of sentence, it would not be appropriate in the exercise of the prosecutorial discretion to pursue the count of murder, but rather to amend the indictment so as to assert some lesser offence.

121 As there is to be a retrial, it would not ordinarily be either necessary or appropriate to deal with the appeal against sentence, unless there was some particular reason for doing so. In the present case it was suggested during argument that the appeal against sentence gave rise to an issue of general importance relating to the principles governing the circumstances in which a sentence other than a sentence of life imprisonment would be imposed following a conviction of murder. However, the uncertainty to which I have referred in relation to the precise basis upon which Mr Schmidt was convicted and sentenced makes this an inappropriate vehicle for the resolution of those issues.

122 Accordingly, the appeal against sentence should be dismissed on the basis that it is otiose, without any consideration of its merit.

123 BUSS JA: The appellant appeals against conviction and sentence.

124 He was charged on an indictment which alleged that on 9 May 2011 he murdered Andrew Kirk Marshall, contrary to s 279 of the Criminal Code (WA) (the Code).

125 The appellant pleaded not guilty and was tried in the Supreme Court before Simmonds J and a jury.

126 The State did not assert that the appellant intended to kill Mr Marshall. Its case, on the charge of murder, was that the appellant unlawfully killed Mr Marshall and he intended to cause him 'a bodily

injury of such a nature as to endanger, or be likely endanger, life', within s 279(1)(b) of the Code.

127 The trial judge directed the jury on the elements of murder under s 279(1)(b) and on the defence of accident under s 23B of the Code. He also left, for the jury's consideration, the alternative offences of manslaughter, pursuant to s 280 of the Code, and unlawful assault causing death, pursuant to s 281 of the Code.

129 The trial judge imposed a sentence of life imprisonment with a 14-year non-parole period.

130 I agree with Martin CJ that the appeal against conviction should be allowed and the judgment of conviction for murder should be set aside. However, I would not order a new trial. In my opinion, this court should enter a judgment of conviction for manslaughter, pursuant to s 30(5) of the Criminal Appeals Act 2004 (WA).

131 In these circumstances, it is neither necessary nor appropriate to determine the appeal against sentence. This appeal should be dismissed.

132 My reasons for these conclusions are as follows.

133 In summary, the State's case at trial was as follows.

134 On the night of 8 May 2011, the appellant was drinking with a group of friends in a bar on the first floor of the Ocean Beach Hotel in Cottesloe.

136 At about 9.00 pm, Mr Marshall was standing near large windows, talking to two young women. The appellant, in a fit of rage, walked up to Mr Marshall and, after perhaps a very short exchange of words, pushed him forcefully. Mr Marshall was as close as 0.6 m to one of the windows. As a result of the appellant's push, Mr Marshall went backwards into this window. The window broke and he fell backwards through the broken window to a concrete footpath, about 5.73 m below. Mr Marshall suffered severe injuries. He died in the early hours of 9 May 2011.

(a) The appellant was 1.85 m tall and weighed 152 kg. He was very strong and could bench press at least 200 kg and squat press 300 kg.

138 The window through which Mr Marshall fell had been installed in about 1980. It was 5.65 mm thick, which was slightly thinner than the other windows on the first floor of the hotel. It was not safety glass, but it was not required to be. The size of the window was 1.393 m x 1.280 m.

139 After Mr Marshall fell, the appellant fled the scene. As he departed, the appellant forcefully punched and pushed another person. He surrendered to the police the next day, and was arrested.

140 The State alleged that all of the force with which Mr Marshall hit the window was generated by the appellant's push. It was also alleged that Mr Marshall's death was not an accident, and that when the appellant pushed Mr Marshall he did so with the intention of causing him a bodily injury, and that the intended bodily injury was, objectively, likely to endanger his life or did in fact endanger his life.

141 In the evidence, the bar in question is variously referred to as being on the 'first floor', the 'second floor' and the 'top floor'. It is convenient in these reasons to refer to it being on the first floor. Nothing turns on this point. The important aspect, about which there was no contest, is that the distance from the first floor to the concrete footpath was about 5.73 m.

142 In summary, the appellant's case at trial was as follows.

143 The appellant gave sworn evidence in his defence. He accepted that he had pushed Mr Marshall, but claimed that it was a single-handed push. He wanted to make Mr Marshall go away. He did not intend to push him in the direction of the window. At no stage did he intend to hurt Mr Marshall or cause him any harm.

144 Defence counsel submitted that the appellant did not intend to cause Mr Marshall any bodily injury and that his death was an accident.

Appeal against conviction: the grounds of appeal

145 The appellant relies on three grounds in his appeal against conviction.

146 Ground 1 alleges that the jury's verdict was unreasonable and cannot be supported, having regard to the evidence adduced at trial.

147 Ground 2 alleges that the trial judge erred by misdirecting the jury as to s 279(1)(b) of the Code.

148 Ground 3 alleges that his Honour erred in law by failing adequately to canvass the defence case in his summing up, thereby giving rise to a substantial miscarriage of justice.

149 On 28 November 2012, Mazza JA granted leave to appeal on grounds 1 and 2, and referred the application for leave to appeal on ground 3 to the hearing of the appeal.

150 It is convenient first to consider ground 2, then ground 1 and, finally, ground 3.

Appeal against conviction: ground 2: the Criminal Law Amendment (Homicide) Act 2008 (WA)

151 On 1 August 2008, s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Homicide Amendment Act) came into operation. The offence of wilful murder and the penalty of strict security life imprisonment were abolished. Also, the then existing offence of murder was repealed. A new offence of murder was created with accompanying changes to the penalty.

152 The Homicide Amendment Act was enacted in response to recommendations made by the Law Reform Commission of Western Australia (the Commission) in its report entitled Review of the Law of Homicide, final report (2007).

153 Prior to the Homicide Amendment Act, the former s 279(1) of the Code provided, relevantly, that a person who unlawfully kills another, if the offender 'intends to do to the person killed or to some other person some grievous bodily harm', is guilty of murder.

154 The term 'grievous bodily harm' is, and at all material times has been, defined in s 1(1) of the Code to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'. See also the extended definition of the term in s 1(4)(c) and (d).

155 The Commission recommended in its final report that 'an intention to cause a bodily injury of such a nature as to cause or be likely to cause a permanent injury to health is not sufficient to establish the mental element of murder': recommendation 4, page 325.

That s 279 of the Criminal Code (WA) be amended to provide that it is murder if, and only if, the accused unlawfully kills another person and -

(1) the accused intended to cause the death of the person killed or some other person;

(2) the accused intended to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed or of some other person; or

(3) death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.

157 The Commission expressed the view that the grievous bodily harm rule, in the context of the offence of murder under the then existing provisions of the Code, was too broad because it covered conduct that was not life-threatening. The Commission concluded that 'only an intention to cause an injury that endangers or is likely to endanger life should constitute the mental element of murder' and that the mental element of murder, defined in this manner, 'demonstrates close proximity or correspondence with the harm done' (page 48).

Appeal against conviction: ground 2: the text of s 279(1)(b)

158 Section 279(1)(b), as enacted pursuant to the Homicide Amendment Act, reads:

If a person unlawfully kills another person and -

(a) ... ; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

(c) ...

the person is guilty of murder.

Alternative offence: s 280, 281, 283, 284, 290 or 291 or Road Traffic Act 1974 s 59.

159 The term 'bodily injury' is not defined in the Code. The term 'bodily harm' is defined in s 1(1) and it means 'any bodily injury which interferes with health or comfort'.

Appeal against conviction: ground 2: the subjective and objective components of s 279(1)(b)

160 In Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91, McLure P (Buss JA & Mazza J agreeing) held that the test under s 279(1)(b) is partly subjective and partly objective. The accused must subjectively intend to cause a bodily injury which is of such a nature as objectively to endanger, or objectively be likely to endanger, life. Her Honour said:

The expression 'of such a nature' as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect. That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life, or would be likely to endanger life [25].

161 Counsel for the appellant submitted that this court's decision in Wongawol, as to the subjective and objective components of s 279(1)(b), is inconsistent with the observations of Callinan J (Gleeson CJ & McHugh J agreeing) in Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387 on the proper construction of a relevantly indistinguishable provision of the Criminal Code (NT). It was argued that, on the reasoning of Callinan J, s 279(1)(b), properly construed, requires that the accused must subjectively intend to cause a bodily injury which is of such a nature as subjectively to endanger, or objectively be likely to endanger, life.

162 The provision of the Criminal Code (NT) under consideration in Charlie was s 162(1)(a), which provides, relevantly, that if a person unlawfully kills another intending 'to do to the person killed or to some other person grievous harm', the person is guilty of murder. The term 'grievous harm' is defined by s 1 to mean ' ... any physical or mental injury of such a nature as to endanger or be likely to endanger life ... '.

163 The relevant observations of Callinan J in Charlie are these:

In my opinion, according to its ordinary meaning, the definition of 'grievous harm' does not require any element of awareness of result. It is sufficient for the purposes of s 162(l)(a), for a conviction of murder to be sustained, that the offender intended ... to cause a physical or mental injury which was of such a nature as actually to endanger, or objectively viewed be likely to endanger, life [76].

164 It is apparent from this passage that Callinan J was of the opinion that, by virtue of s 162(1)(a) read with the definition of 'grievous harm', for a conviction of murder to be sustained it was necessary, relevantly, that:

(a) 'the offender intended ... to cause a physical or mental injury'; and

(b) the physical or mental injury which the offender intended to cause must have been 'of such a nature as actually to endanger' life;

(c) alternatively to par (b) above, the physical or mental injury which the offender intended to cause must have been 'of such a nature as ... objectively viewed be likely to endanger' life [76]. (emphasis added)

165 Callinan J's reasons indicate plainly that his reference to the offender having 'intended' to cause a physical or mental injury was to the offender's subjective intention [71] - [73].

166 The word 'actually' means, relevantly, as an actual or existing fact; really; as a matter of fact. See the Macquarie Dictionary, 5th ed, 17; The Australian Oxford Dictionary, 2nd ed, 13.

167 In my opinion, there is no doubt that Callinan J, in referring to the physical or mental injury which the offender intended to cause having been 'of such a nature as actually to endanger' life, was referring to an injury which is of such a nature, as a matter of objective fact, as to endanger life. (emphasis added)

168 I am therefore of the opinion that there is no relevant inconsistency between this court's decision in Wongawol, as to the subjective and objective components of s 279(1)(b), and the observations of Callinan J in Charlie.

169 Counsel for the appellant's submission on this point is without merit.

Appeal against conviction: ground 2: other aspects of s 279(1)(b)

170 Section 279(1)(b) refers to the subjective intention of an accused to cause a bodily injury and to the objective nature of that bodily injury. The provision does not refer to the accused's action or intended action to give effect to his or her subjective intention to cause a bodily injury.

171 The ordinary meaning conveyed by the text of s 279(1)(b) is that:

(a) the accused must subjectively intend to cause a bodily injury; and

(b) that bodily injury must be of such a nature as objectively to endanger, or objectively be likely to endanger, the life of the person killed or another person.

172 In other words, the bodily injury which is subjectively intended is the bodily injury which must be evaluated to determine whether it is of such a nature as objectively to endanger, or objectively be likely to endanger, life.

Appeal against conviction: ground 2: relevant provisions of the Code as to when a killing is unlawful, causation and criminal responsibility

173 Section 268 of the Code provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law.

174 By s 270, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

175 Section 277 provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

176 Section 23B(2) states that a person is not criminally responsible for an event which occurs by accident.

Appeal against conviction: ground 2: the elements of the alleged offence of murder

177 In the present case, it was necessary for the State to satisfy the jury beyond reasonable doubt that:

(b) the killing was unlawful (in particular, Mr Marshall's death was not an accident);

(c) the appellant subjectively intended to cause a bodily injury to Mr Marshall; and

(d) that bodily injury was of such a nature as objectively to endanger, or objectively be likely to endanger, Mr Marshall's life.

Appeal against conviction: ground 2: the critical point

178 The critical point raised by ground 2, as developed at the hearing of the appeal, is whether a miscarriage of justice occurred at the trial because the State conducted its case, and the trial judge directed the jury, without specifying the general kind of bodily injury which, on the evidence, it was open to the jury to find the appellant subjectively intended to cause, within s 279(1)(b).

Appeal against conviction: ground 2: the prosecutor's opening

179 The prosecutor told the jury in her opening address that the State did not allege that the appellant had 'committed a premeditated killing' (ts 140).

The State alleges that [the appellant], with an intention to cause bodily injury of such a nature as to endanger or be likely to endanger Mr Marshall's life [sic].

[Sic] With that intention, he unlawfully killed Andrew Marshall. So if the State proves that [the appellant] intended to do a bodily injury and you find that the bodily injury he intended to do was objectively likely to endanger Mr Marshall's life, or in fact did endanger his life, then [the appellant] would be guilty of murder.

So the State says that that was [the appellant's] intention when he assaulted Andrew Marshall. To cause a bodily injury to him, which objectively was of such a nature as to endanger or be likely to endanger Mr Marshall (ts 140). (emphasis added)

181 In this passage the prosecutor did not specify the general kind of bodily injury which the State alleged the appellant subjectively intended to cause. She merely asserted that the appellant's intention, when he assaulted Mr Marshall, was 'to cause a bodily injury to him' (ts 140). It is apparent from the context that the assault in question was the appellant's forceful push. The prosecutor did not, elsewhere in her opening, describe the general kind of bodily injury which, on the State's case, the appellant subjectively intended to cause.

Appeal against conviction: ground 2: defence counsel's opening

182 Defence counsel gave an opening address about the appellant's case.

183 Defence counsel said that, although the appellant accepted that he pushed Mr Marshall at the time and place alleged, he was not guilty of murder or manslaughter.

184 According to defence counsel, the appellant pushed Mr Marshall 'out of the way with his left hand, a fairly firm push, caused him to tumble backwards and fall towards the glass' (ts 143).

185 Defence counsel misstated the State's case as opened by the prosecutor. According to defence counsel:

And the prosecution say this is a case of murder. As my friend says, murder can be a situation where you intend to kill someone. They resile from that. They accept that there was never any intent to kill this man and that's quite properly so we say.

What they do say, however, is that he intended at the time he pushed him to cause him life-endangering bodily injury, not just any bodily injury, but they say that this man intended, and they need to prove this to show murder, life-endangering bodily injury to Mr Marshall. Now, the accused denies any such intention, and we say on the evidence it will be clear to you that no such intent is made out (ts 143 - 144) (emphasis added).

186 However, the prosecutor did not allege that the appellant subjectively intended, when he pushed Mr Marshall, to cause him 'life-endangering bodily injury'. She merely referred to 'bodily injury'.

187 Defence counsel said that Mr Marshall's death was an accident: the appellant did not foresee, and it was not 'reasonably foreseeable by a reasonable person', that Mr Marshall would '[go] out the window, [go] through the window' (ts 144).

Appeal against conviction: ground 2: the appellant's formal admissions

188 After the prosecutor's and defence counsel's opening addresses, a number of formal admissions made by the appellant pursuant to s 32 of the Evidence Act 1906 (WA) were read into evidence (ts 159 - 161). These admissions included:

(a) on the morning of 9 May 2011, Mr Marshall died from injuries sustained at about 9.00 pm on 8 May 2011 as a result of a fall from the first floor window of the Ocean Beach Hotel after being pushed by the appellant (admission 6);

(b) as at 8 May 2011, Mr Marshall was 1.82 m tall and weighed 90 kg (admission 8); and

(c) as at 9 May 2011, the appellant was 1.85 m tall and weighed 152 kg (admission 9).

Appeal against conviction: ground 2: the appellant's evidence-in-chief

189 The appellant explained, in evidence-in-chief, his intention in pushing Mr Marshall:

Did you push him in any particular direction---No, I didn't. Just pushed him.

All right. What was your intention as you pushed him---Just to - like an intent - like, for him to go away. Like, just go - go away.

All right. How were you feeling when you did that---I suppose I was just a bit annoyed.

Can you say exactly how hard you pushed him---No, I can't. It wasn't - wasn't overly dramatic, but I couldn't say for sure how hard I pushed him.

Now, we now know that you pushed him in the direction of the window---Yes.

Was that your intention---No, it was not. At no stage did I intend to hurt him. It - I didn't even intend to cause any harm to him whatsoever (ts 682).

190 The appellant also gave evidence that it was 'incorrect' to say that he pushed Mr Marshall with the intention 'to cause him serious injury' (ts 683). According to the appellant, he 'did not intend any harm of any kind towards Mr Marshall' (ts 683). He also described as 'a lie' the proposition that he intended to push Mr Marshall 'so hard that he went through the window' (ts 683). According to the appellant, he 'didn't want to do that at all' (ts 683). He did not want to hurt Mr Marshall (ts 683).

191 The appellant reiterated in later questioning by his counsel that he did not intend 'any harm at any level to [Mr Marshall] whosoever' (ts 684).

Appeal against conviction: ground 2: the appellant's cross-examination

192 The prosecutor cross-examined the appellant extensively about the mechanics of, and circumstances surrounding, the push which precipitated Mr Marshall's fall through the window (ts 705 - 717).

193 She then questioned the appellant about whether he accepted that he in fact pushed Mr Marshall through the window:

And you'd accept, wouldn't you, you pushed him through the window---Not intentionally. That was never part of what I pushed [sic].

I'm not asking you about your intention at the moment. I'm asking you did you push him through the window---No, I didn't. I pushed him and then he went through the window. I didn't push him through the window. I didn't look at the window and say, 'There's a window. I'm going to push him through it'. That wasn't the case.

You pushed him through the window, didn't you---No. I pushed him and he - and he fell backwards, hit the window and then went out the window (ts 717). (emphasis added)

194 The prosecutor did not question the appellant about whether he subjectively intended to cause a bodily injury to Mr Marshall until later in her cross-examination. The questioning was brief:

Was your first instinct not to help the person that had just gone out the window---Not at that stage, no.

Because you'd actually meant to hurt him, hadn't you---No, I had not.

...

You meant to hurt Mr Marshall, didn't you---No, I did not. I did not intend to cause him any harm at all.

And yet you knew that assaulting someone could do all sorts of harm---In a general sense, yes, I did.

You knew that - - ----But at [the] time of the incident I wasn't thinking about anything like that.

About doing - -----I wasn't thinking of hurting, not at all.

You knew that assaulting someone can kill them, didn't you---I did know that, yes. Assaulting someone can lead to someone dying (ts 720, 730). (emphasis added)

195 The prosecutor's cross-examination of the appellant on his subjective intention to cause a bodily injury to Mr Marshall was directed to establishing the proposition that he 'meant to hurt' Mr Marshall.

196 The prosecutor did not at any stage put to the appellant that he subjectively intended to cause Mr Marshall a bodily injury of a specific or a general kind. Also, she did not at any stage put to the appellant that he subjectively intended to push Mr Marshall through the window or into the window with sufficient force to break the glass or into the window to hurt him.

Appeal against conviction: ground 2: the appellant was not re-examined

197 Defence counsel did not re-examine the appellant.

Appeal against conviction: ground 2: the prosecutor's closing address

198 The prosecutor submitted in her closing address that the appellant did not 'just push [Mr Marshall] towards the window, he pushed him at it, into it and through it' (ts 796). She suggested that there was 'no room ... for any other conclusion' (ts 796). These submissions concerned what in fact occurred. They did not relate to the appellant's subjective intention.

199 The prosecutor told the jury that a 'real issue' in the case was 'the [appellant's] intent' because 'the charge of murder requires that the State prove not only that [the appellant] unlawfully killed Mr Marshall, but that he did so with a particular intent' (ts 813).

200 The prosecutor noted that defence counsel, in his opening address, had misstated the State's case. She said that what the State must prove is that the appellant 'intended to cause a bodily injury to Mr Marshall. Not a life-threatening injury as my learned friend put it' (ts 813).

201 After acknowledging that the State had 'always said that [the appellant] did not necessarily intend to kill Mr Marshall', the prosecutor said:

The State must prove a bodily injury. Then in addition ... the State must prove that the injury that [the appellant] intended to cause was objectively ... of such a nature as to endanger life or be likely to endanger life (ts 813).

202 The prosecutor went on to explain the State's case in relation to the appellant's subjective intention:

What [the appellant] did do, the State says, is intentionally push [Mr Marshall] into [the] window intending to hurt him. And the way he intended to hurt him was of such a nature that it endangered his life.

And in fact it was likely to endanger his life. And we say he's guilty of murder on that basis. That he intended to do him a bodily injury of such a nature as to endanger his life or be likely to do so. We don't need to tell you exactly what that injury was. What we need to prove to you is that it was of that nature. And that nature's very clear in this case (ts 814). (emphasis added)

203 So, the prosecutor left the State's case to the jury on the basis that the appellant's alleged subjective intention, for the purposes of s 279(1)(b), was that he pushed Mr Marshall 'into [the] window intending to hurt him' (ts 814). As I have mentioned, the prosecutor did not put this proposition to the appellant in cross-examination.

Appeal against conviction: ground 2: defence counsel's closing address

204 Defence counsel asserted, in his closing address, that the appellant pushed Mr Marshall 'with no specific intent at all' (ts 825). He said the push was 'reactive' and 'impulsive' (ts 825). Although the push 'was almost certainly deliberate, the death was accidental' (ts 825).

205 According to defence counsel, if the appellant had intended 'any serious harm' to Mr Marshall, he would have 'smashed him' (ts 826). Instead, he merely 'fended him off like a rugby player' (ts 826).

Appeal against conviction: ground 2: the trial judge's summing up

206 The trial judge informed the jury, in his summing up, of the elements of the offence of murder under s 279(1)(b) which the State had to prove beyond reasonable doubt:

The elements that the State must prove beyond a reasonable doubt are these; (1) that [the appellant] killed Andrew Kirk Marshall, which is to say that [the appellant] caused the death of Andrew Kirk Marshall. (2) The killing was unlawful. (3) At the time of the act causing the death [the appellant] himself had the intention to cause bodily harm. (4) That the bodily harm intended by [the appellant] was objectively of such a nature as to endanger or be likely to endanger Mr Marshall's life (ts 896). (emphasis added)

207 His Honour then elaborated on each of the elements. As to the subjective intention embodied in s 279(1)(b), he said, relevantly:

I turn then to the next element, the element of intending to cause a bodily injury. I remind you for this element, the State must prove beyond a reasonable doubt that [the appellant] himself intended to cause bodily injury to Mr Marshall. Bodily injury means what it sounds like, an injury to a person's body. Intention is something that typically must be determined finally by reference to inference.

...

It is important in all of this and I need to remind you of this, both counsel acknowledge this, that the State does not contend that [the appellant] had an intention to kill Mr Marshall. That is not any part of the State case. The intention, the State says, that [the appellant] himself had is the intention to cause bodily harm, as I've described it (ts 899, 901). (emphasis added)

208 The trial judge did not, elsewhere in his summing up, elucidate the subjective requirement in s 279(1)(b) by reference to the evidence.

209 Accordingly, his Honour's assistance to the jury on the issue of the appellant's subjective intention comprised telling it, in substance, that:

(a) the State must prove beyond reasonable doubt that the appellant intended to cause bodily injury to Mr Marshall;

(b) bodily injury means an injury to a person's body; and

(c) the State's case was that the appellant intended to cause bodily harm to Mr Marshall by causing an injury to his body (ts 899, 901).

Appeal against conviction: ground 2: the trial judge's redirection

210 The trial judge completed his summing up at 11.47 am on 20 June 2012. The jury then retired to consider its verdict.

211 His Honour received submissions from the prosecutor and defence counsel, in the absence of the jury, about any redirections or additional directions that may be necessary.

212 Defence counsel made this submission about the State's case on the appellant's subjective intention:

[W]hat the State's case here is that there's a need for the jury to be clearly told that the bodily injury here on our facts is not the push. But the bodily injury is the bodily injury that the deceased would suffer as a result of going out of the window and striking the footpath. And the State's case here is that there was an intention for the deceased to go out the window.

And where one has particular regard to the State's case as opened and closed, that would appear to be their case.

...

[W]e say here that the jury need to be told that on the facts of this case that the bodily injury is not the push. The bodily injury is what occurred afterwards (ts 916, 918). (emphasis added)

213 The prosecutor responded on this issue as follows:

I take some objection to the way my learned friends have characterised the State's closing. The State made it extremely clear that the bodily injury intended was to be caused as a result of a push in the environment in which is it was undertaken, that is, concrete, brick, glass (ts 918). (emphasis added)

214 The 'concrete, brick, glass' mentioned by the prosecutor in this passage referred to the rendered concrete pillars, wall-to-wall windows and brick floors in the bar area where the incident occurred.

215 She then noted that in her closing address she had put the State's case on the basis that the appellant had subjectively intended to push Mr Marshall 'into the window intending to hurt him' (ts 918 - 919).

Now, there is no authority and the State has not run its case on the basis that we have to prove that the bodily injury was in fact that he pushed him out of the window and landed on the pavement, and he intended to cause him the injury by his landing on the pavement. By the push he intended to cause him a bodily injury. The State need not specify that injury. It simply needs to prove the next element, which is the nature of that injury was of such a nature as to endanger life or be likely to endanger life.

So we would submit that your Honour did direct in relation to that ... (ts 919). (emphasis added)

217 A little later, the following exchange occurred between his Honour and the prosecutor:

FORRESTER, MS: The fact that he pushed him at the window is not so much intent, but what he actually did. The intent is something - - -

SIMMONDS J: Yes, but from which it might be then inferred that he intended to do what - yes. All right.

FORRESTER, MS: Yes.

SIMMONDS J: All right.

FORRESTER, MS: I don't have a difficulty, by the way, if my learned friends seek a redirection in relation to those two elements because, obviously, they are significant issues in this trial.

SIMMONDS J: Indeed they are.

FORRESTER, MS: But I do object to the characterisation of the State's case as bodily harm by way of hitting the footpath (ts 920). (emphasis added)

218 At 12.21 pm on 20 June 2012, the jury was recalled and his Honour redirected on five matters. The fifth matter concerned the appellant's subjective intention to cause bodily injury:

The final and fifth point has to do with what you will have appreciated, given the amount of attention it received in counsel's closings, both prosecution and defence, was the matter of intention. The intention to cause bodily injury is so critical. That is one the elements, critical in that sense, in relation to the offence of murder.

Now, the State case, you'll recall, I described as I did. I shall give you a little more detail about it and I shall also give you a little more detail about the defence case in relation to the same subject matter.

The State case was that [the appellant], Mr Schmidt, pushed the deceased into the window intending to hurt him. [The appellant] did that intending to hurt him and matters relevant to that were as you'll remember the prosecution indicated. The injury, of course, must also satisfy the other requirement that it was [of] such a nature that it endangered his life, or was likely to do so. And you'll remember how I directed you on that.

What the defence says must also be a matter that you think about, again in the same way you think about what the prosecution case was, to assist, if it does, as I've indicated. The defence case was of course that [the appellant] did not intend any harm.

And the defence case draws your attention to the evidence of [the appellant] that he did not intend to push so hard at Mr Marshall as to push him through the window. That indeed [the appellant] was not paying any attention to his surroundings at the time he pushed at Mr Marshall to fend him off and in particular wasn't paying any attention to the window and its location relative to where [the appellant] was pushing Mr Marshall (ts 929). (emphasis added)

219 So, the trial judge's redirection on the issue of the appellant's subjective intention within s 279(1)(b) involved nothing more than a repetition of the prosecutor's assertion in her closing address that, on the State's case, the appellant pushed Mr Marshall into the window intending to hurt him.

220 At 12.31 pm, the jury retired again to consider its verdict (ts 930).

Appeal against conviction: ground 2: the jury's question

221 At about 2.28 pm on 20 June 2012, the jury sent the trial judge a note with the following request:

Could we please have a further clarification on the elements within the charge of murder and manslaughter, specifically unlawful killing, and the fourth element of murder? Our preference would be to have these clarifications in writing to allow us to refer at will (ts 949).

222 After debating the request with the prosecutor and defence counsel, his Honour recalled the jury to ensure that he had a correct understanding about the guidance the jury was seeking (ts 958). His Honour discussed the matter with the forewoman in the presence of the other jurors, the prosecutor and defence counsel (ts 958 - 959).

223 At 2.50 pm, the jury retired again to consider its verdict (ts 959).

224 Further discussion then occurred between his Honour, the prosecutor and defence counsel about the jury's request (ts 959 - 966).

225 Eventually, at 3.21 pm, the jury was recalled and the trial judge gave an additional direction on a question which he had distilled from his discussion with the forewoman. The question was:

Can you please 'repeat' your definitions of the elements of murder? (ts 966).

226 His Honour dealt with this question by reading a slab of transcript, virtually verbatim from his original summing up, in which he gave instructions on the elements of the offence of murder under s 279(1)(b) (ts 966 - 969).

227 At 3.30 pm, the jury retired again to consider its verdict (ts 969).

228 At 5.03 pm on 20 June 2012, the jury returned and delivered its verdict of guilty on the charge of murder (ts 1003).

Appeal against conviction: ground 2: its merits

On 9 May 2011 at Perth [the appellant] murdered [Mr Marshall].

230 The indictment also stated, in substance, that the alleged offence of murder was contrary to s 279 of the Code.

231 In my opinion, it was essential, in the present case, to enable the jury properly to perform its function, for the State to specify the general kind of bodily injury which, on the evidence, it was open to the jury to find the appellant subjectively intended to cause to Mr Marshall. The ambiguity in the State's case on this issue was readily apparent upon the prosecutor completing her opening address. See [179] - [181] above. The trial judge should have required the prosecutor, before she adduced any evidence, to remove the ambiguity. A miscarriage of justice occurred at the trial because the State conducted its case, and the trial judge directed the jury, without specifying the general kind of bodily injury which, on the evidence, it was open to the jury to find the appellant subjectively intended to cause to Mr Marshall. My reasons for this conclusion are as follows.

232 First, if the appellant subjectively intended to cause a bodily injury to Mr Marshall, then, on the evidence, there was a direct connection between the bodily injury that he subjectively intended to cause, on the one hand, and the mechanism he adopted in the pursuit of that intention, on the other. The jury would necessarily have assessed the appellant's alleged subjective intention to cause a bodily injury in the context of the mechanism he allegedly adopted to inflict that bodily injury and the surrounding circumstances revealed by the evidence. The only relevant mechanism was the appellant's push.

233 Secondly, if the jury was satisfied beyond reasonable doubt that the appellant subjectively intended to cause a bodily injury to Mr Marshall, then the jury had to determine whether it was satisfied beyond reasonable doubt that this bodily injury was of such a nature as objectively to endanger, or objectively be likely to endanger, life.

234 Thirdly, the jury could not properly perform its function of determining whether any bodily injury that the appellant subjectively intended to cause to Mr Marshall was of such a nature as objectively to endanger, or objectively be likely to endanger, life, without a clear understanding of the general kind of bodily injury that the State alleged the appellant subjectively intended to cause.

235 Fourthly, the trial judge's statement to the jury, in his summing up and in his answer to the jury's question, to the effect that the State alleged that the appellant intended to cause a bodily injury to Mr Marshall by causing an injury to his body, was unhelpful.

236 Fifthly, his Honour's statement to the jury, in his redirection, that the State's case was that the appellant pushed Mr Marshall 'into the window intending to hurt him' did not clarify adequately the broad and unfocused character of the State's case on this issue.

237 Section 279(1)(b) refers to the accused intending to cause a 'bodily injury'. It does not refer to the accused intending to 'hurt' someone. His Honour's departure from the statutory text is of significance. As a matter of fact, an intention to cause a bodily injury is not necessarily synonymous with an intention to hurt someone.

238 Sixthly, it is apparent, from the jury's verdict, that it was satisfied beyond reasonable doubt that the appellant subjectively intended to cause a bodily injury to Mr Marshall and that this bodily injury was of such a nature as objectively to endanger, or objectively be likely to endanger, life.

239 However, the absence of adequate clarification about the general kind of bodily injury which, on the State's case, the appellant subjectively intended to cause, and an appropriate judicial direction on this issue, created a real (as opposed to a fanciful) risk that the jury may have reasoned impermissibly towards guilt.

240 For example, the jury may have found that the appellant subjectively intended to cause a bodily injury to Mr Marshall by pushing him with a view to:

(a) the window breaking and Mr Marshall being cut by shards of glass; or

(b) Mr Marshall striking his head on the 'concrete, brick, glass' referred to by the prosecutor in her submissions to the trial judge on the redirections sought by defence counsel; that is, on the rendered concrete pillars, the wall-to-wall windows or the brick floors in the bar area where the incident occurred (ts 918).

241 However, the State did not run its case, in relation to the appellant's subjective intention to cause a bodily injury, on the basis of either of these scenarios, and the prosecutor did not cross-examine the appellant on either of them. They were not raised or explored in the prosecutor's addresses or mentioned in his Honour's charge to the jury. No attention was given as to whether bodily injuries of the kind referred to in the scenarios would have been of such a nature as objectively to endanger, or objectively be likely to endanger, life.

242 As I have mentioned, the prosecutor closed the State's case by asserting that the appellant pushed Mr Marshall 'into [the] window intending to hurt him' (ts 814). As I have also mentioned, the prosecutor did not put this proposition to the appellant in cross-examination.

243 If the jury accepted the State's case that the appellant pushed Mr Marshall 'into the window' with the subjective intention of 'hurting him', the jury then had to work out for itself, without any submissions from the prosecutor or guidance from his Honour, what kind of 'bodily injury' the appellant may have subjectively intended to cause before evaluating whether the bodily injury it had identified was of such a nature as objectively to endanger, or objectively be likely to endanger, life.

244 Seventhly, in the context of the primary count of murder, the only general kind of bodily injury that it was open to the jury to find, on the evidence:

(a) that the appellant subjectively intended to cause Mr Marshall; and

(b) which was of such a nature as objectively to endanger, or objectively be likely to endanger, life,

was fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath.

245 The critical point raised by ground 2, as developed at the hearing of the appeal, has therefore been made out.

246 Finally, I should note before leaving ground 2 that the present case is unusual. In most cases, the general kind of bodily injury which, on the State's case in a prosecution under s 279(1)(b), the accused subjectively intended to cause to the victim, will be obvious. Examples include where the accused has inflicted a penetrating wound to the victim's groin with a knife, or has discharged a firearm in close proximity to the victim and the bullet has punctured the victim's leg, or has forcefully struck the victim on the head with a baseball bat.

247 The appellant alleges in ground 1 that the jury's verdict was unreasonable and cannot be supported, having regard to the evidence adduced at trial.

248 By s 30(3)(a) of the Criminal Appeals Act, in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

249 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 450.

250 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

251 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

252 However, this court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, '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 (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

253 It was not seriously in contest at trial (if it was in contest at all) that as a matter of factual, as distinct from legal, causation, the appellant caused Mr Marshall's death (ts 897). See the appellant's formal admission 6, which I have reproduced at [188] above. There was, in any event, abundant evidence in support of the proposition that Mr Marshall would not have died 'but for' the appellant's push and that this push was a substantial or significant cause in fact of his death. See Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 [21] - [39] (Steytler P, Wheeler & McLure JJA agreeing). The issue of causation in fact is, of course, different from the defence of accident.

254 The State's case on the defence of accident was that, the relevant event being Mr Marshall's death, in the circumstances the appellant foresaw the death as a possible outcome of his assault upon Mr Marshall (that is, the push), alternatively, an ordinary, sober person in the appellant's position would reasonably have foreseen the death as a possible outcome of the assault (ts 809 - 810). The prosecutor said in her closing address:

We say that if someone pushes someone as hard as [the appellant] pushed Andrew Marshall in that room, with rendered concrete pillars, wall-to-wall windows, brick floors, death is absolutely reasonably foreseeable as a possible outcome. Assaults can kill people. Forceful collisions with hard surfaces can kill people. And [the appellant], he knew it.

Now, [the appellant] says, look, he did know that, but he wasn't thinking of that at the time ...

If you're not satisfied that at the time he foresaw it, we'd submit to you that what the evidence overwhelmingly tells you is that ... an ordinary person who is sober, in the position of [the appellant], with his background, his knowledge of himself, his knowledge about fighting and assaults, a person in that position would have reasonably foreseen that Mr Marshall's death was a possible outcome of [the appellant's] assault.

Now, if he did foresee Mr Marshall's death, or if you find that an ordinary person as I've described would have foreseen that death as a possible outcome, then you would find that the State has proved this was not an accident ...

We don't need to prove what actually happened, as I say, was foreseeable, that he would break the window, the window would smash, he would land on the pavement and die ... (ts 810). (emphasis added)

255 However, the prosecutor went on to submit in substance that, even if the State had to prove that what actually happened to Mr Marshall was foreseen by the appellant as a possible outcome or would reasonably have been foreseen by an ordinary, sober person in his position as a possible outcome, the jury would have no difficulty in finding that the scenario, as it occurred, was 'absolutely foreseeable' (ts 810 - 811).

256 In my opinion, there was a proper basis in the evidence for the State to invite the jury to find beyond reasonable doubt that the defence of accident had been negatived and that the killing of Mr Marshall was unlawful.

257 In my opinion, if the State had been required by the trial judge to clarify adequately the general kind of bodily injury which it alleged the appellant subjectively intended to cause to Mr Marshall, it would have been open to the State, on the evidence, to allege that the appellant subjectively intended to cause Mr Marshall fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath. There was a proper basis in the evidence for the State to invite the jury to find beyond reasonable doubt (by inferential reasoning) that this was the appellant's subjective intention.

258 A bodily injury of this general kind would undoubtedly have been of such a nature as objectively to endanger, or objectively be likely to endanger, life.

259 Findings and inferences open on the evidence and the appellant's formal admissions included:

(a) On the morning of 9 May 2011, Mr Marshall died from injuries sustained on 8 May 2011 at about 9.00 pm as a result of a fall from a first floor window of the Ocean Beach Hotel after being pushed by the appellant.

(b) The appellant was 1.85 m tall and weighed 152 kg. He was very strong and could bench press at least 200 kg and squat press 300 kg.

(d) The substantial difference in physical stature between the appellant, on the one hand, and Mr Marshall, on the other, must have been obvious to the appellant.

(e) The appellant was aware of his own strength and weight.

(f) The appellant had been trained as a crowd control officer and he was aware that assaulting a person can result in death.

(g) The appellant was angry and frustrated. As he left the scene after Mr Marshall had fallen to his death, the appellant forcefully punched and pushed another person.

(h) Mr Marshall was between 60 cm and 1 m from the window when he was pushed by the appellant.

(j) The window was on the first floor of the hotel and the distance from the first floor to the concrete footpath was about 5.73 m.

(k) The appellant was familiar with the hotel and he must have known of the approximate size of the window and the approximate distance from the first floor to the concrete footpath.

(l) The appellant pushed Mr Marshall with two hands (on the evidence of the witnesses Mark Sylva (ts 227 - 228), Dean Banning (ts 320 - 322) and Amanda Barnes (ts 185 - 186)) and it was 'a fairly hard forceful push' (on the evidence of Mr Sylva (ts 228)) or 'a pretty big push' or 'a meaningful push' (on the evidence of Mr Banning (ts 321, 334)).

(m) Mr Marshall had his back to the window and the appellant's push resulted in the appellant being propelled backwards through the window.

(n) It is notorious that glass may break if struck forcefully with a solid object.

(o) The appellant did not know whether the window was safety glass or not and no reasonable person would have assumed that it was safety glass.

260 I am satisfied, on my examination of the trial record, that:

(a) if the trial judge had required the State to clarify adequately the general kind of bodily injury which it alleged the appellant subjectively intended to cause to Mr Marshall; and

(b) if the State had alleged that the appellant subjectively intended to cause Mr Marshall fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath,

then it would have been open to the jury to reject material aspects of the appellant's evidence and his defence of accident, and to be satisfied beyond reasonable doubt that he was guilty of murder under s 279(1)(b).

261 A jury, acting reasonably and appropriately directed by the trial judge, would not have been precluded by the state of the evidence at trial from being satisfied beyond reasonable doubt of the appellant's guilt. A jury, acting reasonably and appropriately directed, could properly be satisfied beyond reasonable doubt that the State had excluded the defence of accident, that the appellant subjectively intended to cause a bodily injury to Mr Marshall of the kind I have mentioned and that a bodily injury of this kind was of such a nature as objectively to endanger, or objectively be likely to endanger, life. The evidence does not require the conclusion that a jury, acting reasonably and appropriately directed, would necessarily have had a doubt as to whether the appellant was guilty of murder.

263 Section 112 of the Criminal Procedure Act 2004 (WA) provides, relevantly, that in a criminal trial before a judge and jury, 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.

264 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ held that, in a criminal trial before a judge and jury, the judge is not bound, in his or her summing up, to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to undertake that task does not mean that a miscarriage of justice will have occurred (560). Nevertheless, their Honours emphasised that fairness means that ordinarily the respective cases advanced by the State and the defence must be accurately and fairly put to the jury (561). Their Honours then said:

But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (R v Lowery (No 3) [1972] VicRp 109; [1972] VR 939, at p 948) ... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Matthews and Ford [1972] VicRp 1; (1972) VR 3, at pp 15 - 16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence (R v Davies and Cody [No 2] [1937] VicLawRp 47; [1937] VLR 226, at pp 236 - 237; R v Melville (1956) 73 WN (NSW) 579). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (561).

265 In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ noted that the fundamental task of a judge in a criminal trial is to ensure a fair trial of the accused [41]. Their Honours then elaborated:

That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). It will require the judge to put fairly before the jury the case which the accused makes [41]. (emphasis added)

266 The adequacy of a trial judge's summing up to the jury will depend on all the circumstances of the case. Those circumstances include the manner in which the State and the defence have conducted the trial and the content and length of the addresses by the prosecutor and defence counsel. A summing up will not be inadequate unless there is a real risk that the trial judge's omission or approach has resulted in a miscarriage of justice. See Carroll v The State of Western Australia [2004] WASCA 254 [192] - [194] (Roberts-Smith J, Malcolm CJ & Murray J agreeing); Walsh v The State of Western Australia [2011] WASCA 119 [57] (McLure P, Buss JA & Hall J agreeing).

267 In the present case, the trial judge reminded the jury, in his summing up, of the appellant's formal admissions pursuant to s 32 of the Evidence Act (ts 894 - 895).

268 The appellant admitted in substance that he had pushed Mr Marshall and that Mr Marshall had died from injuries sustained as a result of falling through the first floor window to the concrete pavement after he was pushed.

269 However, the appellant asserted, amongst other things, that Mr Marshall's death was an accident, that he did not subjectively intend to cause Mr Marshall any bodily injury, that he did not subjectively intend or foresee Mr Marshall's death as a possible outcome, that Mr Marshall's death would not reasonably have been foreseen by an ordinary person as a possible outcome, and that any bodily injury that the appellant subjectively intended to cause Mr Marshall was not of such a nature as to endanger or be likely to endanger life.

270 As to the defence of accident, his Honour referred to (ts 898 - 899):

(a) The appellant's evidence as to his distance from the window when he pushed Mr Marshall.

(b) The appellant's understanding of the dangers inherent in assaulting someone, based on his boxing experience and his work as a crowd control officer.

(c) The effects of the application of force through contact with others.

(d) The State's case as to how the appellant pushed Mr Marshall.

(f) The nature of glass as a material that can break.

(g) The expert evidence of Dr Ralph James as to the force required to break the window.

(h) The submissions of defence counsel as to how the jury should consider what effort a person in the appellant's position would have had to exert to produce the physical consequences which culminated in Mr Marshall's death.

(i) Evidence as to the appellant not being in a position to make a clinical calculation of the force he applied to Mr Marshall.

(j) The evidence of the witness, Joseph Barnes, and Mr Sylva as to the manner in which the appellant pushed Mr Marshall.

(k) The evidence of Mr Sylva and the CCTV images captured outside the hotel which, on the defence case, showed Mr Marshall attempting to regain his balance before he fell through the window.

(l) The appellant's evidence as to his disbelief about the events that had occurred.

271 As to whether the appellant subjectively intended to cause a bodily injury to Mr Marshall, his Honour reminded the jury of the following (ts 900 - 901):

(a) The appellant's evidence that he had pushed Mr Marshall away, on the spur of the moment, using much less force than he might have been capable of applying.

(b) The appellant's evidence that he fended Mr Marshall off as a rugby player would.

(c) The evidence of Mr Barnes and Mr Sylva as to the nature and extent of the push that the appellant gave Mr Marshall and the evidence of Mr Sylva and Mr Banning to the effect that Mr Marshall was not pulled up from a sitting position.

(d) The evidence as to why the window broke even though safety glass would not have broken.

(e) The absence of any evidence of a motive on the appellant's part to cause Mr Marshall harm.

(f) The absence of any evidence of an intention that might have derived from the appellant being in a fit of rage.

272 As to whether any bodily injury that the appellant subjectively intended to cause to Mr Marshall was of such a nature as to endanger or be likely to endanger life, his Honour reminded the jury of defence counsel's submission that the State could not establish this element beyond reasonable doubt having regard, in particular, to the appellant's evidence about his intention (ts 901).

273 As I have mentioned, after the jury initially retired to consider its verdict, his Honour recalled the jury and redirected it on five matters. The fifth matter concerned the appellant's subjective intention to cause bodily injury. In the course of that redirection his Honour reminded the jury of the defence case on that issue (ts 929). See [218] above.

274 In my opinion, the trial judge put the defence case fairly and adequately before the jury in his summing up and his redirection. The appellant was represented at trial by senior and junior counsel, each of whom has had substantial criminal law experience. After the redirection, defence counsel did not seek any additional direction or redirection. The significant issues in the case were the defence of accident, whether the appellant subjectively intended to cause a bodily injury to Mr Marshall and, if the appellant did have this intention, whether the bodily injury was of such a nature as objectively to endanger, or objectively be likely to endanger, life. Defence counsel's closing address was comprehensive and skilfully presented. The defence closing address occurred on the afternoon of 19 June 2012 and his Honour charged the jury on the morning of the following day (with the further directions being given that afternoon). There is no reasonable prospect that his Honour's treatment of the defence case or his summary of it gave rise to a miscarriage of justice.

Appeal against conviction: appropriate orders including whether there should be a new trial of the appellant for murder

276 Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender. It reads, relevantly:

If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -

(a) order a trial or a new trial; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the offender could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,

enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; ...

277 In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character (630). Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case (630). Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused' (630).

278 In King v The Queen [1986] HCA 59; (1986) 161 CLR 423, Dawson J reiterated that the discretion to order a new trial should not be exercised 'when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective' (433). His Honour noted, in particular, that 'the Crown should not be given an opportunity to make a new case which was not made at the first trial: (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, at p 518) (433)'. See, to similar effect, the observations of McHugh J in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, where his Honour held that a new trial should not be ordered because 'a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial' (590).

279 In Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, the appellant was convicted on seven charges in an indictment. He served a term of imprisonment. The Court of Criminal Appeal of Western Australia held that the trial judge gave inadequate directions to the jury on the operation of s 373 of the Code. It ordered a new trial. The Court of Criminal Appeal held that it would be open on the new trial to convict the appellant on a basis different from the Crown case at the original trial. The High Court reversed the decision of the Court of Criminal Appeal to order a new trial. Dawson, Toohey and McHugh JJ said that at the new trial the appellant would be called upon to meet a significantly different case from that presented by the Crown at the original trial (520). A new trial in these circumstances would be unfair to the appellant, especially since the term of the sentence originally imposed on him had expired (520). Their Honours said:

The appellant could have been charged with stealing the property of one or other of named persons, without specifying which (s 584(15)). That was not done. He could perhaps (though not realistically) have been charged with stealing the property of persons unknown (see Trainer v The King [1906] HCA 50; (1906) 4 CLR 126 at 135). However, that was not the Crown case. The Crown should not be permitted to present a quite different case through a new trial. We should make it clear that, in allowing the appeal, we are not to be taken as saying that the Crown could not, on any view of the matter, make out a case of stealing in respect of any of the seven counts. Whether that could be done by carrying out the sort of exercise represented by the appellant's schedule or by some other analysis of the account is something which it is unnecessary to consider. The trial miscarried, the Court of Criminal Appeal erred in its use of equitable principles and it would be unfair to the appellant to order a new trial in which he would have to meet a significantly different case to that the jury were asked to consider (520).

280 In R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51], Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen (1991) 53 A Crim R 421, 453 that:

(a) there is a public interest in the due prosecution and conviction of offenders; and

(b) it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.

281 In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518, and by Dawson J in King (433), to 'a new case' must be 'to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence' [35] - [36].

282 Gleeson CJ and Callinan J also said in Taufahema that the general rule that 'litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence' [37].Their Honours explained:

The considerations identified in Crampton v The Queen ((2000) 206 CLR 161 at 172 - 173 [15] - [20]) as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned [37].

283 Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that 'the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial' [67].

284 In the present case, my assessment is that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction of murder under s 279(1)(b). See my analysis and conclusion in the context of ground 1.

285 I turn to consider whether, in the circumstances, it would be unjust to make the appellant stand trial again for murder. It is necessary to have regard to the public interest in the proper administration of justice as well as the interests of the appellant. My review of the authorities shows that the High Court has held on numerous occasions that the discretion to order a new trial should not be exercised if, in all the circumstances, the new trial would be unjust to the accused; for example, by allowing the State to make a substantially different case from that which it put to the jury at the original trial.

286 The factors militating in favour of a new trial for murder appear to be these:

(a) The State's case on murder at the original trial was broad and unfocused in relation to the appellant's subjective intention to cause a bodily injury to Mr Marshall. At a new trial the State would be bound to narrow and confine its case on this issue by alleging that the appellant subjectively intended to cause Mr Marshall fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath. I have held, in considering ground 1, that it would have been open to the State, on the evidence, to make this allegation at the original trial. I have also held, in considering ground 2, that, on the evidence, this was the only general kind of bodily injury that it was open to the jury to find in the context of the primary count of murder. If the State's case at the new trial was narrowed and confined, in the manner I have indicated, this would be to the appellant's advantage, compared to the State's broad and unfocused case at the original trial, on the issue of his subjective intention.

(b) It was not suggested at the hearing of the appeal that the evidence which the State would call at a new trial would be different in any material respect from the evidence it adduced at the original trial. There is no basis for concluding that there would be any relevant difference.

(c) The inferences which the State may rely on at the new trial, as to the appellant's subjective intention to cause a bodily injury to Mr Marshall, were also open to the State at the original trial.

(d) The appellant addressed in his evidence-in-chief at the original trial the proposition that he intended to push Mr Marshall 'so hard that he went through the window' (ts 683). The appellant rejected this proposition and said that he 'didn't want to do that at all' (ts 683). He did not intend to cause Mr Marshall 'serious injury' (ts 683). Indeed, he 'did not intend any harm of any kind towards [him]' (ts 683). The defence case on these matters would, no doubt, be identical at the new trial.

(e) There is a public interest in the due prosecution and conviction of offenders, especially where very serious offences are alleged, and it is desirable for the guilt or innocence of offenders to be finally determined by a tribunal of fact.

287 The factors militating against a new trial for murder appear to be these:

(a) At the original trial the prosecutor left the State's case on murder to the jury on the basis that the appellant's alleged subjective intention was that he pushed Mr Marshall 'into the window intending to hurt him' (ts 814). The trial judge, in his redirection, instructed the jury to that effect (ts 929).

(b) At the original trial the prosecutor did not run the State's case on murder on the basis that the appellant subjectively intended to cause Mr Marshall fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath. The prosecutor informed the trial judge, during discourse about any redirections or additional directions that may be necessary, that she objected to 'the characterisation of the State's case as bodily harm by way of hitting the footpath' (ts 920). The only reasonable objective inference in all the circumstances (including the content of the prosecutor's opening and closing addresses and her cross-examination of the appellant) is that the prosecutor understood (correctly) throughout the trial that the State would bear a significantly greater burden, as a matter of fact, if it was required to prove this subjective intention as distinct from the broad and unfocused approach which was adopted on this issue. Also, the prosecutor, in objecting to the State's case being characterised as 'bodily harm by way of hitting the footpath', must have appreciated that she had not cross-examined the appellant about his subjective intention beyond putting to him that he 'meant to hurt' Mr Marshall (ts 720, 730).

(c) The prosecutor, in her written submissions on sentencing, conceded in effect that the State could not prove beyond reasonable doubt that the appellant subjectively intended to cause a bodily injury to Mr Marshall by pushing him through the window. Paragraph 8 of the written submissions reads:

The State acknowledges that it could not be proved beyond reasonable doubt that the [appellant] pushed Mr Marshall with the specific intention of him going through the window. However:

1. the surroundings in which he pushed Mr Marshall;
2. the direction in which he pushed him;

1. the force with which he pushed him (and must have pushed him, having regard to the expert evidence);

1. the fact that he was well aware of the force he was capable of applying;

all demonstrate, as the jury must have found, that the [appellant] did, contrary to his evidence, intend to cause bodily injury to Mr Marshall and that the injury intended to be done was of such a nature as to be likely to endanger Mr Marshall's life or be likely to do so. (emphasis added)

This concession was reaffirmed in substance in the following exchange between the trial judge and the prosecutor at the sentencing hearing:

SIMMONDS J: ... I take it that the State does accept for the purpose of the sentencing that there is no finding it would press me to make that [the appellant] was aware of the life-threatening character of what would happen at the collision of Mr Marshall with the window?

FORRESTER, MS: In the sense, your Honour, that the State does not allege that he actively intended to push Mr Marshall out of the window.

SIMMONDS J: I'm going a little further than that, Ms Forrester.

FORRESTER, MS: Yes (ts 56 - 57). (emphasis added)

I raised this matter with counsel for the State at the hearing of the appeal. Counsel submitted that par 8 of the State's written submissions on sentencing merely acknowledged that the State could not prove murder under s 279(1)(a), which provides that if a person unlawfully kills another person, and the person intends to cause the death of the person killed or another person, the first mentioned person is guilty of murder (appeal ts 42 - 43). I do not accept this submission. Paragraph 8 does not refer to an intention to cause the death of Mr Marshall. At the original trial the State never relied on s 279(1)(a). The prosecutor told the jury in her opening address that the State did not allege that the appellant had 'committed a premeditated killing' (ts 140). She then proceeded to outline the State's case by reference to the elements of s 279(1)(b) (ts 140). The prosecutor made comments to similar effect in her closing address (ts 813). Paragraph 8 deals with the factual basis on which the appellant should be sentenced in the context of the State's case under s 279(1)(b).

(d) Although the prosecutor's concession that the State could not prove that the appellant pushed Mr Marshall with the subjective intention of 'him going through the window' was generous in view of my finding, in the course of examining ground 1, that it would have been open to the State, on the evidence, to make this allegation at the original trial, the concession appears to explain the manner in which the prosecutor chose to run the State's case at the original trial.

(e) The trial judge, in his sentencing remarks, made the following findings about the appellant's subjective intention:

I note in particular that you intended to cause Mr Marshall an injury when you pushed him in the way relative to the window in the upstairs bar of the licensed premises the Ocean Beach Hotel as I consider the jury must have found in pronouncing the verdict that they did.

... The injury was that which Mr Marshall would have sustained from a collision under the impact of that force with the window.

...

I consider on the evidence, particularly that of Dr James and the verdict of the jury, that you pushed Mr Marshall with substantial force with the intention of causing him injury from a resultant collision with the window. I am satisfied that you did not intend to push him through the window and, as I have said, you were not aware when you pushed him that the injury you intended to cause him was life-threatening.

At the same time you were aware of the direction in which you were pushing him, the surroundings in which you were pushing him and the force you were using. However, there was no premeditation or planning in the events that happened. Rather, I find the push you gave Mr Marshall was a spur of the moment matter [38], [39], [48], [49].

His Honour's finding that the appellant did not intend to push Mr Marshall through the window would have ameliorated, to a significant extent, the severity of the sentence that would otherwise have been imposed.

(f) At the original trial the State endeavoured to obtain a conviction for murder by proving a subjective intention on the appellant's part that was general and reflected a relatively low level of moral culpability; that is, the appellant 'merely' pushed Mr Marshall into the window intending to 'hurt' him. The State was not willing to run its case on murder by assuming the heavier burden of proving a subjective intention on the appellant's part that was more specific and reflected a relatively high level of moral culpability; that is, the appellant subjectively intended to cause Mr Marshall fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath.

(g) At a new trial for murder the State would have to run a substantially different case, being the case it was unwilling to run at the original trial.

(h) If the State were permitted at a new trial for murder to run its case on the basis that the appellant's subjective intention was more specific and reflected a relatively high level of culpability, and the appellant were again to be convicted of murder, a more severe sentence would, no doubt, be imposed on him. That is, if a new trial for murder were ordered, the State would be able to (indeed, would have to) run its case on a substantially different basis and the appellant would, if again convicted of murder, face a more severe sentencing outcome. It is unnecessary, in making this point, to express an opinion on whether the sentence imposed by the trial judge was, on the facts he found at the sentencing hearing, manifestly excessive or otherwise vitiated by error.

288 In my opinion, the combined force of the various factors militating against a new trial for murder outweigh the various factors militating in its favour. The decisive features which make it unjust to order a new trial for murder are:

(a) the State's forensic decision at the original trial to endeavour to obtain a conviction for murder by proving a subjective intention on the appellant's part that was general and reflected a relatively low level of moral culpability;

(b) the State's forensic decision at the original trial not to run its case on murder by assuming the heavier burden of proving that the appellant subjectively intended to cause Mr Marshall fractures and internal injuries of the kind that a person would suffer if he or she was pushed backwards through a window and fell about 5.5 m to a concrete footpath; this being, on the evidence, the only general kind of bodily injury that it was open to the jury to find, in the context of the primary count of murder, that the appellant subjectively intended to cause Mr Marshall;

(c) the necessity for the State to run a substantially different case at a new trial for murder, being the case it was unwilling to run at the original trial; and

(d) the significant prejudice the appellant would suffer in the sentencing process if the State were permitted, at a new trial for murder, to run its case on the substantially different basis I have outlined, and the appellant were again to be convicted of murder.

289 I have therefore concluded that this court should not order a new trial for murder.

290 It remains to consider whether, in terms of s 30(5)(c) of the Criminal Appeals Act, the appellant could have been found guilty of manslaughter instead of murder and, if so, whether this court is satisfied that the jury at the original trial must have been satisfied of facts that prove the appellant was guilty of manslaughter; alternatively, whether a new trial for manslaughter should be ordered.

291 Manslaughter, contrary to s 280 of the Code, is an alternative offence to murder. See s 279 read with s 10A, s 10B and s 10C of the Code. As I have mentioned, the trial judge left, for the jury's consideration, the alternative offences of manslaughter and unlawful assault causing death. It follows that the appellant could have been found guilty of manslaughter instead of murder.

292 I am satisfied beyond reasonable doubt, based on the jury's verdict and the facts that were not in dispute at the trial (including the appellant's formal admissions pursuant to s 32 of the Evidence Act), that the jury must have been satisfied of facts that proved beyond reasonable doubt that the appellant caused Mr Marshall's death and that the killing was unlawful. In particular, I am satisfied beyond reasonable doubt that the jury, by its verdict, rejected the appellant's evidence to the effect that he did not unlawfully kill Mr Marshall and was satisfied the State had negatived the defence of accident pursuant to s 23B of the Code. Counsel for the appellant did not complain about the trial judge's directions on the elements of causation and unlawful killing or on the defence of accident.

293 I would enter a judgment of conviction for the offence of manslaughter contrary to s 280.

294 The appellant and the State should be heard concerning the sentence to be imposed for this offence.

295 I would make the following orders in the appeal against conviction:

(c) The judgment of conviction for murder is set aside.

(d) A judgment of conviction for manslaughter is entered.

(e) The appeal be relisted on a date to be fixed for the purpose of hearing submissions and deciding upon the sentence to be imposed for manslaughter.

296 My conclusions and proposed orders in relation to the appeal against conviction make it unnecessary and inappropriate to determine the appeal against sentence. This appeal should be dismissed.

297 MAZZA JA: I agree with the Chief Justice and Buss JA that the appeal against conviction should be allowed. I would order a retrial on the charge of murder. In the circumstances, it is unnecessary to decide the appeal against sentence.

298 The Chief Justice and Buss JA have comprehensively described the relevant evidence adduced at trial, the appellant's admissions and, insofar as it is relevant, the sentencing proceedings. I will not repeat what they have written except insofar as it is necessary to explain my reasons.

299 I will first deal with ground 2 of the appeal against conviction. Ground 2 alleges that the learned trial judge erred by misdirecting the jury as to s 279(1)(b) of the Criminal Code (WA) (the Code).

300 Section 279(1) of the Code defines the offence of murder in these terms:

(1) If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

301 The State disavowed a case based on s 279(1)(a) and relied only on s 279(1)(b) (ts 140).

302 The proper construction of s 279(1)(b) of the Code was recently considered by this court in Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91. In that case, McLure P, with whom Buss JA and I agreed, said that there were two limbs to s 279(1)(b), being:

1. the person intends to cause a bodily injury of such a nature as to endanger the life of the person killed or another person; and
2. the person intends to cause a bodily injury of such a nature as to be likely to endanger the life of the person killed or another person: Wongawol [23].

303 McLure P construed each limb to be partly subjective and partly objective in that an accused must have subjectively intended to cause a bodily injury which was of such a nature to objectively either endanger life or be likely to endanger life: Wongawol [25].

304 Senior counsel for the appellant, in the course of oral submissions, suggested that the first limb of s 279(1)(b) was wholly subjective (appeal ts 14). In support of this submission, senior counsel drew this court's attention to observations made by Callinan J in Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387 [75]. Callinan J's observations were referred to by McLure P in Wongawol. I have reconsidered her Honour's reasons, having regard to senior counsel's submissions. I see no reason to doubt the correctness of her Honour's construction of s 279(1)(b) of the Code.

305 In order for the appellant to be convicted pursuant to s 279(1)(b) of the Code, the State was required to prove beyond reasonable doubt that:

1. the appellant caused the death of Mr Marshall directly or indirectly, by any means whatever, in circumstances where it was not authorised, justified or excused by law: s 268 and s 270 of the Code; and
2. that he did so by intentionally inflicting a bodily injury and that bodily injury was of such a nature as to objectively endanger or be likely to endanger the life of Mr Marshall; and
3. the death was unlawful, that is, on the facts of this case, it was not an accident pursuant to s 23B(2) of the Code.

306 At trial, there was no dispute that the appellant pushed Mr Marshall and that, as a fact, the push propelled him through a window and onto the concrete footpath below, causing him to suffer fatal injuries. However, the defence disputed that the appellant intended to cause Mr Marshall any bodily injury when he pushed him.

307 Thus, a critical issue for the jury to determine was whether the State had proved beyond reasonable doubt that at the time the appellant pushed Mr Marshall he intended to cause a bodily injury which was, objectively, of the type specified in s 279(1)(b).

308 It is common human experience that a push may not cause or may not be intended to cause any bodily injury to another. Whether a push is intended to cause a bodily injury will depend upon an assessment of all the surrounding circumstances, including the force that was used, the position of the victim and the surrounding environment. Two men pushing and shoving each other may not evince an intention to inflict any bodily injury. Conversely, an intention to cause a bodily injury may well be inferred where a person is deliberately pushed into a fire.

309 As the Chief Justice and Buss JA have each amply demonstrated, the State's case as to the bodily injury the appellant intended to cause Mr Marshall was put very generally.

310 This is apparent from the prosecutor's cross-examination of the appellant and her closing address. It is manifest in the prosecutor's submissions to the learned trial judge in response to the redirections sought by defence counsel after the summing up, when she said:

The State made it extremely clear that the bodily injury intended was to be caused as a result of a push in the environment in which is [sic] it was undertaken, that is, concrete, brick, glass (ts 918).

311 The prosecutor went on to remind his Honour of what she had said in her closing address:

What [the appellant] did do, the State says, is intentionally push him into [the] window intending to hurt him (ts 814).

312 The prosecutor, in effect, told his Honour that the State considered that in order for the appellant to be convicted of murder, it was not essential that it prove that the appellant pushed Mr Marshall through window intending him to suffer a bodily injury when he landed on the footpath. The prosecutor said:

[The State] simply needs to prove the next element, which is [that] the nature of that injury was of such a nature as to endanger life or be likely to endanger life (ts 919).

313 I do not understand the prosecutor to be disavowing this scenario. Rather, the prosecutor was saying that it was not to her mind the only way the appellant could be convicted as charged.

314 His Honour sought some clarification from the prosecutor in regard to what the alleged mechanism of 'hurt' was (ts 919).

315 The prosecutor's response underlines the general nature of the State's case on intention. The prosecutor agreed with his Honour's suggestions that 'hurt' could mean an injury caused by shards of broken glass or by Mr Marshall falling through the window onto the footpath (ts 919 - 920), and added.

We also put it though as impact ... in relation to the other environmental factors, like the concrete pillars, the brick floors (ts 920).

316 In order to properly decide whether any intended bodily injury was of such a nature as to endanger or be likely to endanger Mr Marshall's life, the jury needed to decide what bodily injury, if any, the appellant intended to cause Mr Marshall. An important factor to be considered was the level of force used by the appellant. Another important factor was how the bodily injury was to be caused.

317 If the appellant intended to cause Mr Marshall a bodily injury by pushing him to the floor or into a concrete pillar or the window, without breaking it, it may well be that the jury would have concluded that any intended bodily injury was minor and not of a nature to endanger or be likely to endanger life. It is difficult to see how these scenarios could justify a verdict of murder.

318 On the other hand, if the appellant pushed Mr Marshall into the window, intending to inflict a bodily injury as a result of him going through it, a murder verdict could be justified. To my mind, this was the only factual scenario that would have justified a murder verdict.

319 The learned trial judge's direction to the jury in his summing up unfortunately reflected the way the State put its case and was pitched at a high level of generality. His Honour's directions on intention are quoted in full in the Chief Justice's reasons at [53]. As can be seen, no attempt was made to identify the bodily injury the appellant intended to cause or how it was to be caused.

320 The appellant's junior counsel at trial in effect raised these points and sought a redirection. With great respect to the learned trial judge, the redirection that he gave would not have assisted the jury. The redirection did not identify the bodily injury the appellant intended to cause Mr Marshall or how it was to be caused. His Honour told the jury that the State's case was that the appellant pushed Mr Marshall into the window, intending 'to hurt him' (ts 929). The words 'to hurt him', without further explanation as to their meaning, are vague and do not reflect the statutory language of s 279(1)(b) of the Code. To hurt someone is not necessarily to inflict a bodily injury.

321 Thus, his Honour failed to properly instruct the jury as to the element of intention. The direction left the jury to decide the question of the appellant's intention on a far too general basis. Without a proper consideration of the appellant's intention, there cannot be a proper consideration of the nature of the bodily injury the appellant intended to cause Mr Marshall. In these circumstances, there is a real risk that the jury's verdict was flawed. In my opinion, there has been a miscarriage of justice.

322 It follows that ground 2 must be upheld and the conviction for murder set aside. I will deal with the question of whether a new trial should be ordered and, if so, on what charge, later in these reasons.

323 Ground 1 alleges that the jury's verdict was unreasonable and cannot be supported, having regard to the evidence adduced at trial. This contention is to be approached on the basis that the jury was properly directed as to the law and facts by the learned trial judge.

324 This court must allow an appeal if, in its opinion, the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The expression 'unreasonable or cannot be supported' is, in substance, the same as 'unsafe and unsatisfactory'.

325 In JRNT v The State of Western Australia [2011] WASCA 183, I set out the relevant legal principles which must be applied when considering whether a jury's verdict of guilty is unreasonable and cannot be supported:

The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (emphasis in original)

This court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. Full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

The test laid down in M v The Queen must be applied in this way:

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 (494 - 495) [59] - [61].

326 The appellant submits that it was not reasonably open to the jury to exclude beyond reasonable doubt that:

(b) the appellant did not form the intent to cause Mr Marshall a bodily injury of such a nature as to endanger or be likely to endanger Mr Marshall's life (white AB 12).

327 I have carefully reviewed the trial record. In cases such as this, the jury has a considerable advantage in having seen and heard the witnesses, especially those witnesses who could testify as to the critical events at the Ocean Beach Hotel (OBH), being Amanda Barnes, Mark Sylva, Dean Banning, Joseph Barnes and the appellant. The jury also had a view of the premises.

328 There was no dispute as to the general circumstances. The appellant was at the OBH in the afternoon and evening of 8 May 2011, in the company of others, including Stella Paki and Leila Macleod.

329 At the time, the appellant weighed 152 kg and was strong. He had been to the OBH before and could be taken to be familiar with its layout. Mr Marshall and the appellant were strangers to each other. On 8 May 2011, Mr Marshall weighed approximately 90 kg.

330 There was no dispute that at around 9 pm, Stella Paki and Leila MacLeod were at a table in the upstairs bar of the OBH, near a floor to ceiling window that looked out onto Eric Street, Cottesloe, which was about 5.73 m below. Mr Marshall approached the table, apparently to speak to the two women. The appellant walked up to Mr Marshall and, almost immediately, pushed him with sufficient force to propel him through the window, causing him to land on the footpath below, as a result of which he suffered fatal injuries. Most of the external windows in the upstairs bar were made of safety glass. However, the one through which Mr Marshall was propelled was not made of safety glass.

331 As might be expected, there was some variation as to the precise circumstances in which the appellant pushed Mr Marshall but, in general, the evidence was more or less consistent.

332 Ms Barnes, who was positioned behind the appellant, saw his hands out at about shoulder level, palms facing outwards. She testified that after the window broke, the appellant's arms dropped (ts 186, 198).

333 Mr Sylva described the appellant applying a 'frontal push' to Mr Marshall 'like he [was] passing a basketball' (ts 227, 228). He said that it was a 'fairly hard forceful push' (ts 228). In cross-examination, he described a 'shove', with the appellant apparently using two hands (ts 276).

334 Mr Banning said that the appellant grabbed Mr Marshall by the front of his shirt, with two hands, and pushed him 'rearwards' towards the window, causing it to smash (ts 320). He said Mr Marshall was a maximum of one metre from the window when he was pushed (ts 321, 335). He described it as 'a pretty big push' (ts 321). Mr Banning said he thought the push was not accidental (ts 334). He agreed with the proposition in cross-examination that he was quite surprised when he saw the window break (ts 335).

335 Mr Barnes said that he saw the appellant's shoulders move in a pushing motion towards Mr Marshall. He described it as 'a medium push, I'm guessing'. He estimated that Mr Marshall was 'probably 60 centimetres or more' from the window when he was pushed (ts 379).

336 The State adduced expert testimony from Ralph Nicholas James, who holds a doctorate in experimental physics and is a lecturer in physics and biophysics at the University of Western Australia. The purpose of his evidence was to identify and measure the force required to break the window through which Mr Marshall fell (ts 524). The window Mr Marshall fell through was 5.65 mm thick. Force is measured in newtons, which are ten times the force in kilograms (ts 550). Dr James conducted tests on a number of windows at the OBH, including a window which was very nearly of the same thickness as the window Mr Marshall fell through, being 5.79 mm thick. In Dr James' opinion, a force of between 1,000 and 2,000 newtons, at a speed at or greater than 2 m per second, was required to break the window (ts 555).

337 The appellant testified that when he went over to the table, he saw Stella Paki and Leila Macleod speaking with Mr Marshall (ts 678). The appellant told Mr Marshall to 'fuck off'. Mr Marshall said something to him in reply (ts 680, 681). The appellant said he pushed Mr Marshall with his left hand to the 'chest shoulder'. He described it as 'like a rugby fend off, like a push' (ts 682). The appellant said he did not push Mr Marshall in any particular direction and that the push was not 'overly dramatic', but he was unable to say for sure how hard he pushed him. The appellant testified that he 'didn't ... intend to cause any harm to [Mr Marshall] whatsoever' (ts 682) and he denied intending to push him through the window or into it. In cross-examination, the appellant said that the push was 'a general just "go away"' (ts 712). He estimated that when he pushed Mr Marshall, he (Mr Marshall) was one to two metres from the window, but he accepted that he could have been half a metre to one metre from the window (ts 714 - 715). The only question asked about the appellant's intention in his cross-examination was the very general suggestion that: 'You meant to hurt Mr Marshall, didn't you?'

338 Section 23 B of the Code is relevantly as follows:

23B**. Accident**

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an event which occurs by accident.

...

339 Section 23B replaces, in part, former s 23 of the Code. The former s 23 read:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

340 As can be seen, s 23B, in substance, reproduces the second limb of the former s 23. The case law in relation to the second limb of the former s 23 is relevant to the interpretation and application of s 23B: Raux v The State of Western Australia [2012] WASCA 1 [73] - [79] (Buss JA).

341 An event occurs by accident if 'it was a consequence which was not in fact intended or foreseen by the accused and would not have been foreseen by an ordinary person': Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 231 (Gibbs J; Stephen J agreeing).

342 The State can disprove accident if it proves either that, subjectively, the accused intended or foresaw the event in question as a possible outcome or that, objectively, the event would reasonably have been foreseen by an ordinary person as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative): Raux [84] (Buss JA); R v Taiters; ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333, 338 (Macrossan CJ, Pincus JA & Lee J).

343 The appellant submitted that it was not open to the jury to exclude accident because:

1. The evidence led at trial did not prove either that the appellant foresaw Mr Marshall's death as a possible outcome of his actions, or that an ordinary person in the position of the accused would reasonably have foreseen Mr Marshall's death as a possible outcome of his actions, having regard to the following factors:

(a) The appellant's denial that he intended to cause Mr Marshall harm.

(b) Even if the appellant's denials were not accepted by the jury, it was not a foregone conclusion that the appellant intended to push the victim through the glass.

(c) The reasonable person might have assumed the glass was safety glass.

344 These arguments cannot be accepted. It was plainly open on the evidence to find that the State had, beyond reasonable doubt, disproved accident, having regard to the following factors:

1. The appellant weighed 152 kg and was physically strong. The evidence was that he was aware of his strength.
2. The preponderance of the evidence was to the effect that the appellant pushed Mr Marshall with two hands.
3. Although there was some variation in the expression of the witnesses, the push was delivered with force. Mr Sylva said it was a 'fairly hard forceful push'. Mr Banning described it as 'a pretty big push'. Mr Barnes said it was 'a medium push, I'm guessing'. While the appellant was unable to say for sure how hard he pushed Mr Marshall, it is undeniable that it was hard enough to propel Mr Marshall backwards and through the window. The evidence of Dr James also suggests that the push was forceful.
4. At the time he was pushed, Mr Marshall was a very short distance from a floor to ceiling glass window. That distance was somewhere between 0.5 of a metre and 2 metres.
5. While the appellant and Mr Marshall did not know each other, there was evidence that the appellant was, at the time of the push, angry with Mr Marshall.
6. It is well-known that glass is a material prone to break with the application of force. There was no basis for the appellant to believe that the glass window was sufficiently strong to withstand a forceful push.
7. It was open to the jury to infer that the appellant was aware that the window was some metres above Eric Street and that if Mr Marshall was propelled through the window he would, as a result of falling onto the footpath, suffer a bodily injury of the type required by s 279(1)(b) of the Code, which would in fact lead to death. While the State's case was never that the appellant intended to inflict fatal injuries upon Mr Marshall, it was open to the jury to conclude that Mr Marshall's death would reasonably have been foreseen by an ordinary person as a possible (not remote or speculative) outcome.

345 The appellant submitted that it could not be established beyond reasonable doubt that the appellant intended to cause bodily injury to Mr Marshall, having regard to the following factors:

(a) The appellant's denial that he intended to harm the victim.

(b) The offence lacked motive and the evidence did not demonstrate unequivocally that the appellant was acting in a rage.

(c) It was not a foregone conclusion that the appellant intended to push the victim through the glass.

346 Having regard to the seven factors I referred to earlier, these submissions cannot be sustained. It was plainly open to the jury to infer that the appellant intended to cause bodily injury to the victim.

347 Finally, it was submitted that if the appellant intended to cause a bodily injury to Mr Marshall, it was not of such a nature as to endanger or be likely to endanger him. Once again, having regard to the seven factors referred to earlier, it was clearly open to the jury to be satisfied beyond reasonable doubt that if the appellant intended to push Mr Marshall through the window, the consequences of a fall onto a footpath were clearly of a nature as to endanger or be likely to endanger Mr Marshall's life.

348 Having made my own assessment of the evidence and making due allowance for the natural limitations that exist in the case of an appellate court proceeding on the trial record, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt for the crime of murder. Ground 1 has not been made out and must be dismissed.

349 Ground 3 alleges that the learned trial judge erred by failing 'to canvass adequately the defence case in his Honour's summing up'. In particular, it is alleged that the learned trial judge failed 'adequately' to review the evidence led during the course of the trial and failed to 'adequately' link the law to the facts of the case. I agree with Buss JA for the reasons that he gives that leave to appeal with respect to ground 3 should be refused and the ground dismissed.

Having allowed ground 2, what is the appropriate order?

350 Section 30(5) of the Criminal Appeals Act relevantly provides:

...

(5) If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -

(a) order a trial or a new trial; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the offender could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,

enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or

351 This court, upon allowing the appeal against conviction, must set aside the conviction and may:

(a) order a new trial on the offence of murder or enter a judgment of acquittal of that offence ; or

(b) order a new trial for manslaughter or assault occasioning death; or

(c) if the appellant could have been found guilty of some other offence instead of murder and the court is satisfied that the jury must have been satisfied of the facts that prove that the offender was guilty of another offence, enter a judgment of conviction for that other offence.

352 In this case, the offences for which the appellant may have been convicted other than murder were manslaughter (s 280 of the Code) or assault occasioning death (s 281 of the Code).

353 The appellant's written submissions state that if the appeal is allowed on ground 2, the conviction should be set aside and a retrial ordered on a count of murder. At the conclusion of oral submissions, counsel for the appellant submitted, contrary to the written case, that this court could substitute a verdict of manslaughter (appeal ts 50).

354 Whether this court orders a new trial or makes some other order pursuant to s 30(5) of the Criminal Appeals Act is discretionary.

355 This is not a case where the appeal has succeeded on a ground that the evidence was insufficient to justify a conviction. If that were the case, it would be against principle to order a new trial: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [63] (Gummow, Hayne, Heydon & Crennan JJ). It must be accepted that the power to order a new trial should not be exercised in such a way as to give the prosecution an opportunity to make a new case which was not made at the first trial: R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518 (Dixon J). In Taufahema, Gummow, Hayne, Heydon and Crennan JJ discussed what is meant by a 'new case which was not made at the first trial' [64]. Their Honours, having analysed R v Wilkes, King v The Queen [1986] HCA 59; (1986) 161 CLR 423, Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 and Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, said:

These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial [67].

What, in the context, is meant by 'a new case'? Plainly, it does not mean a different charge. Subject to certain rules of preclusion, or to considerations of oppression, if the prosecuting authorities fail to establish that an accused person committed one offence they may later charge him or her with another offence. In such circumstances, there is no new trial in other than a colloquial sense. There is a further and different trial. In the context of a new trial for the same offence, the reference to a 'new case' must be to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence [36].

356 The evidence that the State would adduce at a new trial would be, in substance, no different to that adduced in the first trial. The State's case would still rely upon s 279(1)(b). No doubt at a retrial the State would cast its case on a narrower and clearer basis, but that is not 'a new case'. As I have endeavoured to demonstrate in my reasons for dismissing ground 1, the admissible evidence adduced at the first trial was sufficiently cogent to justify a conviction for murder. All of these matters point towards an order for a new trial on the count of murder.

357 However, this court must take into account any circumstances that might render it unjust to the appellant to make him stand trial again, bearing in mind that the public interest in the proper administration of justice must be considered, as well as the interests of the individual accused: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 [5] (Gibbs CJ, Murphy, Wilson, Deane & Dawson JJ). Further, it must also be borne in mind that an order for acquittal conflicts with 'the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which ... is the appropriate body to make such a decision': Anderson v The Queen (1991) 53 A Crim R 421, 453, cited with approval in Taufahema [51].

358 In preparation for the sentencing proceedings, the State filed written submissions. Paragraph 8 of those submissions reads as follows:

The State acknowledges that it could not be proved beyond reasonable doubt that the offender pushed Mr Marshall with the specific intention of him going through the window. However:

1. the surroundings in which he pushed Mr Marshall;
2. the direction in which he pushed him;

1. the force with which he pushed him (and must have pushed him, having regard to the expert evidence);

1. the fact that he was well aware of the force he was capable of applying;

all demonstrate, as the jury must have found, that the offender did, contrary to his evidence, intend to cause bodily injury to Mr Marshall and that the injury intended to be done was of such a nature as to be likely to endanger Mr Marshall's life or be likely to do so. (emphasis added)

359 The italicised words contain a concession that was not made at trial, but was made, for the first time, in the sentencing proceedings.

360 It was suggested in argument before this court that the concession was ambiguous. The respondent suggested that the concession should be read as a statement consistent with the State's position at trial, that it did not allege that the appellant intended to kill Mr Marshall (appeal ts 42). In any event, it was pointed out that the concession was made at sentencing and not at trial. Finally, it was said that the concession should not bind the appellant on appeal.

361 In my view, having regard to the text of the concession made in the written sentencing submissions and the way the sentencing proceedings were conducted, I am unable to accept that the concession was merely a repetition of the respondent's position at trial.

362 The concession made in the written sentencing submissions was accepted by the learned sentencing judge. As a result, the appellant was sentenced on the basis of facts favourable to him. If retried, it is arguable that if he is convicted on the narrower basis referred to earlier, he may receive a heavier sentence. In making this observation, I wish to make it clear that I am making no comment on the appropriateness of the sentence imposed by the learned sentencing judge.

363 Of course, whether the appellant will be convicted of murder or any offence at a retrial cannot be predicted. If the appellant was convicted of murder, his sentencing would be conducted according to the principles applicable to sentences imposed after a retrial: see Pollock v The State of Western Australia [2011] WASCA 133 [36] - [39]. If the appellant is convicted on a narrower but more serious basis, he may be liable to a heavier sentence than the one that was originally imposed upon him. However, I cannot see how this would be unjust.

364 The risk that the appellant may be exposed to a higher penalty does not justify, to my mind, the step of preventing a retrial on the charge of murder in circumstances where the evidence is capable of sustaining that verdict.

365 The concession made by the respondent in the sentencing proceedings was, in my opinion, having regard to my analysis of the evidence, generous. I accept that it is a matter of relevance in deciding whether a retrial should be ordered on a charge of murder. However, in my judgment, having regard to all of the circumstances, a retrial on the charge of murder should be ordered.

366 The orders that I would make in the appeal against conviction are:

1. The appeal is allowed.
2. The conviction for murder is set aside.
3. A new trial is ordered.

367 As it is unnecessary to decide the appeal against sentence, it should be dismissed.