Smith v R

The Forensic Evidence

1. One of the two wounds suffered by Mr Freeman was inflicted to his right paraumbilical being an area next to the navel on the right-hand side of the body (known as "wound A"). The other wound was to the left lateral chest (known as "wound B"). Mr Freeman died from complications arising from wound A.
2. The forensic pathologist called by the Crown, Dr Toit-Prinsloo, said that wound A penetrated Mr Freeman "from right to left, front to back in an upwards direction" and was 30mm x 10mm wide. Wound B penetrated Mr Freeman "from left to right, front to back and downwards". Dr Toit-Prinsloo did not proffer an estimate of the depth of wound A and accepted that any such estimate was "difficult and inherently unreliable". He similarly could not comment on the depth of wound B. The forensic pathologist called on behalf of the applicant, Dr Duflou, agreed that it was difficult to estimate the depth of wound B but agreed that it "appears to be of a depth which is significantly less than 220 millimetres" (being the length of the knife). Dr Duflou said that wound A "seems to have gone in probably for a greater distance than the first one".
3. Prior to giving evidence, Dr Toit-Prinsloo had not seen the knife that inflicted the wounds on Mr Freeman. (The original pathologist who performed the autopsy had passed away and Dr Toit-Prinsloo gave evidence based on that pathologist's notes.) Dr Toit-Prinsloo did not express any opinion on the manner in which the stab wounds were occasioned other than accepting that a stab wound could be caused by the person holding the knife stabbing someone or the victim advancing on the person and effectively impaling themselves.
4. Dr Duflou did not feel inhibited in addressing the manner in which the knife wounds were occasioned. The effect of his evidence was that the contentions by the Crown as to how the wounds were caused and that stated by the applicant in his evidence, as well as a combination thereof, were both reasonably possible. Thus, Dr Duflou stated in cross-examination: "Q. Now come to the actual wounds themselves and please tell me if they cannot be described in this way together and if there is any difference. But is it the case that a stab wound such as these two stab wounds can be occasioned by a sharp implement such as that knife being forcefully plunged into the person of the deceased or created by the deceased forcefully advancing on or falling on the knife when it's been held still? A. Yes correct. I suppose there's a third possibility of course which is an interaction of both, of both actions. But yes effectively the force applied cannot determine whether it was the knife that was moving or the person that was being impacted by the knife that was moving. Or a combination of the two." (emphasis added)
5. Consistent with this, Dr Duflou was asked as follows in relation to wound A: "Q. Whereas to get a track wound like this one in that scenario would require a sideways movement by the deceased towards the knife? A. Likely, yes, assuming the knife is stationary, yes. Q. There is of course another combination, another possibility and that is a combination of movements? A. Yes, and I think I mentioned that earlier, yes. Q. For example that stab wound to the flank could be caused if the accused thrust the knife at Mr Freeman who is turning at the same time? A. Ah look it certainly is - I think that it can't be excluded from the appearance of the vicinity." (emphasis added)
6. In terms of the amount of force necessary to occasion the wounds, Dr Duflou noted: "The most important determinant of how much force is required to cause injury is the ability of the point of the knife, the very tip of the knife to enter the skin… because once you've penetrated the skin unless you strike bone the amount of force required to continue passing the knife through the body is less than that that is required than entering the skin."
7. Dr Duflou added that once the skin is penetrated, the knife "will just keep on going with really very little force required" until it makes contact with something hard, such as bone.

Addresses

1. During the defence case, and in the absence of the jury, the trial judge raised with counsel the appropriate directions. The Crown Prosecutor advised his Honour that he and counsel for the applicant considered that it was appropriate to direct the jury in respect of the statutory alternative charges under s 25A(2) and (1) of the Crimes Act. The trial judge queried the path of reasoning which would lead to a consideration of those offences. The Crown Prosecutor indicated that it would arise if the jury was not satisfied that the relevant act of the applicant causing Mr Freeman's death was "dangerous".
2. After the close of the defence case and just prior to the Crown Prosecutor's address, the Crown Prosecutor advised his Honour that he did not propose to address s 25A but added, "I understand your Honour is probably obliged to". There was no opposition to that statement by counsel for the applicant.
3. The Crown Prosecutor's address principally focussed on the Crown case in relation to murder. So far as manslaughter and the statutory alternatives were concerned, the Crown Prosecutor submitted that, if the jury was not satisfied the applicant had the necessary intention for murder, then "a reasonable person, not a drunk person but a reasonable person, would have appreciated that doing that [i.e. stabbing], exposed Mr Freeman to a risk of serious injury" and the applicant would be guilty of manslaughter. The Crown Prosecutor further submitted to the jury that "[i]f you have a doubt about that, that what the accused was doing was dangerous …[then] …there is a further alternative of assault, occasioning death".
4. Counsel for the applicant addressed the jury in relation to whether the Crown had proven beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman and whether his actions were undertaken in self-defence. So far as manslaughter and the statutory alternatives were concerned, counsel reminded the jury that if the Crown did not prove that the applicant deliberately stabbed Mr Freeman, then he was not guilty of all the offences.

The Summing Up

1. The summing up commenced on 17 November 2020. During the summing up, the trial judge provided the jury with a handout specifying the five elements of murder relevant to this case. The second element was that it was the act of the applicant that caused Mr Freeman's death and the third element was that the act was "deliberate". His Honour told the jury that the second element was not in issue as it was not in dispute that Mr Freeman's death resulted from the knife the applicant "happened to be holding at the time the wounds were inflicted". However, his Honour told the jury that the third element was "very much in issue" in that the Crown had "to prove that the act [of the applicant]… was a deliberate act" and that it was only if the jury found "beyond reasonable doubt that it was [the applicant's] deliberate act that killed Mr Freeman" would they then consider the next element of murder.
2. When it came to explaining the elements of manslaughter, the trial judge emphasised that manslaughter did not arise if the jury found the applicant "was not guilty of murder because you were not satisfied beyond reasonable doubt that it was his deliberate act that killed Mr Freeman". Thus, the jury was told that if it found the applicant not guilty of murder "upon the basis that Mr Freeman lunged at [the applicant] and impaled himself on the knife that [the applicant] was simply holding passively, no question of manslaughter would arise in this case".
3. His Honour then directed the jury on the elements of manslaughter by an unlawful and dangerous act. His Honour directed that "an act is dangerous if a reasonable person in the position of [the applicant] at the time the act was committed, would have realised that the act exposed another person, whether it be Mr Freeman or not, to a risk of serious injury". His Honour added that "[i]n deciding whether the reasonable person in the position of [the applicant] would have realised the act was dangerous, you can take into account any awareness or evidence of his awareness and knowledge of the circumstances surrounding that act."
4. His Honour then directed the jury on the elements of the offences under s 25A(1) and (2), including a requirement to be satisfied beyond reasonable doubt that the applicant assaulted Mr Freeman by "deliberately hitting him with some part of his body or with an object held by him, in this case a knife". In doing so his Honour told the jury, "you don't even get to consider these offences if you form the view that [the applicant] did not deliberately stab Mr Freeman" (emphasis added). His Honour reminded the jury that the Crown's submission was that the applicant "was under the influence of alcohol and made a decision to stab Mr Freeman".
5. After this the trial judge summarised the parties' respective cases. His Honour directed the jury that if they believed the applicant's evidence or thought "it might be true" they had to acquit the applicant, but if they rejected the evidence, they had to put it aside and consider whether the Crown had nevertheless proven his guilt beyond reasonable doubt (i.e. a Liberato direction; Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66). His Honour told the jury that it should exercise caution before convicting the applicant because the Crown case depended on the reliability of a single witness, being Adam Marshall. His Honour directed them that, unless they were satisfied beyond reasonable doubt that Mr Marshall was "both an honest and accurate witness in the account he has given", they could not find the applicant guilty of any of the offences (i.e. a Murray direction: R v Murray (1987) 11 NSWLR 12).
6. At the end of 17 November 2020, the jury was invited to retire and consider their verdict. However, at the request of counsel, his Honour gave them further directions the following morning on 18 November 2020. Later that day, a jury note requested, amongst other things, that his Honour clarify the elements of murder. His Honour repeated the elements of murder in terms consistent with what is set out above (at [33]). The note also requested that his Honour explain the "[d]ifference between manslaughter and assault occasioning death". In response, his Honour told the jury: "The next question you ask is quite acute, 'What's the difference between manslaughter and assault occasioning death?'. I take that to be obviously a question for the difference between manslaughter arising by unlawful and dangerous act and assault occasioning death. The simple difference appears to be this: that manslaughter by unlawful and dangerous act, as I have just in those words suggested, must involve a dangerous act; assault occasioning death may involve an assault which is not of itself dangerous. To give you an example, if I meet someone in the street and have a disagreement with them and push them in the chest, that is an assault but it is not necessarily dangerous because they might take a step back and nothing dangerous has occurred. Alternatively, if I push someone in the chest and they fall back and hit their head on the kerb, I have assaulted them and that has caused their death. That is the simple distinction, I think, between the two."
7. This explanation was the subject of criticism on appeal. It was contended that in describing what makes an act dangerous, his Honour gave two supposedly contrasting examples which were only distinguished by the outcome of the accused's act rather than the inherently dangerous quality of the accused's act itself. It was also noted that the explanation omitted to state that a reasonable person in these circumstances would not be intoxicated as the applicant undoubtedly was in this case.
8. The jury then retired and deliberated for the remainder of the day. On the following day, 19 November 2020, the jury returned a verdict of "not guilty of murder but guilty of assault occasioning death while intoxicated". As noted, it is not in dispute that this was effectively an acquittal on manslaughter.

The Sentencing Judgment

1. In light of the manner in which the jury was directed, the verdict of guilty for an offence under s 25A(2) rendered the sentencing judge's task of finding facts on sentence difficult. The Crown contended that his Honour should sentence the applicant on the basis that he deliberately stabbed Mr Freeman twice but in circumstances where his actions were not dangerous as the force of the stabs themselves in combination with Mr Freeman's movements could have been very little. His Honour did not accept that contention, but instead made the following findings which reflected the sentencing submissions made on behalf of the applicant: "Mr Smith took a knife from a knife block in the kitchen and re-entered the loungeroom with the knife held out in front of him. Mr Smith perceived that Mr Freeman was picking up a pole from the floor, so he ran at him with the knife in his right hand and attempted to knock the pole from Mr Freeman's hand by swinging his left hand downwards onto Mr Freeman's arm. Mr Smith hit Mr Freeman with the knife in a way that was not of itself dangerous but it caused Mr Freeman to turn abruptly and move towards Mr Smith, thereby impaling himself upon the knife. Mr Freeman sustained a wound to his left lateral chest area and an internal injury to his diaphragm. Mr Smith pulled the knife back so that the full length of the blade did not penetrate Mr Freeman. Adam Marshall then immediately jumped up and onto Mr Smith's back, placing him in a headlock with his right arm. Mr Marshall punched Mr Smith in the back of the head with his left hand. Mr Smith was then holding the knife at waist height, with it pointing forward. Mr Smith hit Mr Freeman with the knife in a way that was not of itself dangerous but which, combined with Mr Freeman moving forward towards him, caused a deep stab wound to the right side of his umbilicus. This stab wound involved injury to the mesentery, bowel, intestines and the posterior and inferior aorta and caused significant internal bleeding."
2. To a large degree these findings accord with the evidence given by the applicant during the trial.

Assault Occasioning Death

1. Section 25A of the Crimes Act provides: "25A Assault causing death (1) A person is guilty of an offence under this subsection if─ (a) the person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the person, and (b) the assault is not authorised or excused by law, and (c) the assault causes the death of the other person. Maximum penalty─Imprisonment for 20 years. (2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated. Maximum penalty─Imprisonment for 25 years. (3) For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. (4) In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable. (5) It is a defence in proceedings for an offence under subsection (2)─ (a) if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or (b) if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment). (6) … (7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly."
2. As previously noted, s 25B(1) prescribes 8 years' imprisonment as the minimum sentence and minimum non-parole period for an offence under s 25A(2).
3. Sections 25A and 25B were introduced by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). In the Second Reading Speech, the then Premier said that the corresponding bill was introduced to "tackle alcohol- and drug-related crime and antisocial behaviour in the central business district precinct and across New South Wales" and contained "new measures to tackle drug- and alcohol-related violence".
4. Three matters of present significance should be noted about s 25A. First, s 25A(1)(a) applies in the circumstance where a "person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the person" (emphasis added). It was not disputed before the trial judge, and was accepted in this Court, that deliberately stabbing someone with a knife constitutes an act of "intentionally hitting" someone "with an object held by the person".
5. Second, it is not an element of an offence under s 25A(1) or (2) that the relevant act of "hitting" someone either be "dangerous" or not "dangerous".
6. Third, there is scope for argument as to whether manslaughter by an unlawful and dangerous act or an offence under s 25A(2) is the more serious offence. Generally, an unlawful and dangerous act is likely to involve a higher level of criminality than "hitting" someone while intoxicated as the latter does not have any element of dangerousness. Against that, the range of non-parole periods for manslaughter by unlawful and dangerous act, especially following a plea of guilty, often extends below the minimum non-parole period of 8 years for an offence under s 25A(2) (see, for example, Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85; R v Songcuan (No 3) [2023] NSWSC 183; R v Rudolph [2023] NSWSC 181).
7. However, this is a debate for a vacuum. Subsection 25A(7) mandates that on a trial for murder and manslaughter, such as this one, those offences must be considered (and rejected) by the jury before considering the guilt or innocence of an accused of an offence under s 25A(1) or (2). Thus, if a jury is satisfied beyond reasonable doubt that an unlawful act causing death was committed and comes to consider whether the accused is guilty of an offence under s 25A(1) (or (2)) then it will not have been satisfied that the relevant act was dangerous.

Ground 1: Unreasonable Verdict

1. Ground 1 of the notice of appeal contends that the jury's verdict was unreasonable "as it was based upon the act of [the applicant] causing Mr Freeman's death not being dangerous".
2. The applicant submitted that the verdict was unreasonable because the acquittals on murder and manslaughter were inconsistent with the conviction on s 25A(2). The submissions contended that the verdicts of not guilty to manslaughter and guilty to an offence under s 25A(2) could not be reconciled in the manner undertaken by the trial judge in the sentencing judgment. Contrary to the applicant's sentencing submissions to the trial judge, it was submitted that his Honour's findings were fundamentally inconsistent with the manner in which his Honour directed the jury and evidence at the trial. Instead, consistent with the trial judge's directions, it was submitted that the jury's verdict was explicable on the basis that it rejected even the possibility that the applicant's version was true; accepted Adam Marshall's version of events; was satisfied that the applicant deliberately stabbed Mr Freeman (causing wound A which, in turn, caused his death); was satisfied that the stabbing was not undertaken in self-defence; and that the applicant was intoxicated. The applicant additionally submitted that the verdict meant the jury was not satisfied that he intended to kill or inflict grievous bodily harm and: "In the way the possible verdicts were put to the jury, the verdict also means… the jury was not satisfied that Mr Smith's act of stabbing Mr Freeman was dangerous. That is, they were not satisfied: that act carried with it an appreciable risk of serious injury; and/or a reasonable person in Mr Smith's position would have realised this."
3. The applicant's submissions further contended that the act of "deliberately stabbing Mr Freeman to the abdomen causing wound A… was inherently dangerous" and "patently carried with it an appreciable risk of serious injury" which a reasonable person in the applicant's position must have realised. The submissions contended that "[i]t was not reasonable (nor rational nor logical) for the jury to notionally acquit [the applicant] of manslaughter but find him guilty of assault causing death when intoxicated" and that the verdicts revealed a compromise on the part of the jury (citing Mackenzie at 366 and 368). The submissions urged this Court to intervene by "carrying forward the logic of acquittal of murder and notional acquittal on manslaughter, and enter a verdict of acquittal of assault causing death when intoxicated" (citing MacKenzie at 368).
4. In addressing this ground, two matters should be noted at the outset. First, I accept so much of these submissions that rejects the trial judge's findings of fact on sentence as a means of explaining the jury's verdicts. I also accept so much of this submission that contends that the jury accepted that the applicant deliberately (and unlawfully) stabbed Mr Freeman in a manner that caused wound A but were not satisfied that his actions were dangerous. The directions given to the jury only permitted it to find the applicant guilty on the basis that Mr Freeman was deliberately stabbed. That was how the parties conducted their case and addressed the jury. The question posed by the jury confirms that it focussed on the element of dangerousness to distinguish between manslaughter and an offence under s 25A(2).
5. However, this conclusion only highlights the contradiction between the applicant's analysis of the verdicts and submission that the jury should carry forward the logic of the acquittal on murder and manslaughter to acquit the applicant on the offence under s 25A(2). On the applicant's analysis, which in this respect I agree with, the "logic of the acquittal" on murder was a lack of satisfaction that the applicant had an intention to inflict death or grievous bodily harm and the "logic of the acquittal" on manslaughter was a lack of satisfaction that the applicant's act was dangerous. If that "logic" is carried forward it could not lead an acquittal for an offence under s 25A(2). This accords with common sense because, if the jury was unanimously satisfied beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman, which the applicant submits, it would be an affront to justice to enter an acquittal on an offence under s 25A(2), although the question of a retrial may still loom. As explained below, this is consistent with the authorities concerning inconsistent verdicts.
6. Second, I do not accept so much of the applicant's submissions that contended that the trial judge's directions and jury's verdicts meant it accepted each and every element of Adam Marshall's description of the manner in which the applicant stabbed Mr Freeman. Mr Marshall described a quick and traumatic incident in which Mr Freeman attempted to resist. The other witnesses also described such a confrontation. Mr Marshall was clearly wrong in his recollection of where the stab wounds were inflicted.
7. It is true that a Murray direction was given by the trial judge in respect of Mr Marshall's evidence. While that appears to have been generous to the applicant, it does not mean that the overall effect of Mr Marshall's evidence is more incriminating for the applicant than it actually was. His evidence carried with it some necessary degree of uncertainty arising from the quick escalation of a confrontation which he joined and his consumption of alcohol and marijuana. His evidence in relation to wound A (extracted above at [15]) confirms that the degree of penetration arose from Mr Freeman turning around. As submitted by the Crown in this Court, it was open to the jury to treat the relevant "act" of stabbing as a deliberate but small penetration of Mr Freeman's skin which was exacerbated by his movements.
8. Most cases before this Court which involve a complaint of inconsistent verdicts concern different verdicts on multiple count indictments relating to separate acts and not alternative counts, such as in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 ("MFA"). However, like this case, in Mackenzie the High Court considered a complaint of inconsistency between an acquittal and a verdict of guilty on alternative counts. The appellant in Mackenzie was charged with two counts of perjury contrary to s 327 of the Crimes Act and two counts of perjury with intent to procure a conviction or an acquittal contrary to s 328 of the Crimes Act. The appellant was a solicitor who had given evidence at his client's criminal trial. Thus, if he had perjured himself, he was likely to be cognisant of its potential consequences for his client. The particulars to the indictment identified two alleged false statements each of which founded a count under ss 327 and 328. The appellant was found guilty of the offences under s 327 and not guilty of the offences under s 328. The High Court unanimously rejected a complaint that the verdicts were unreasonable by reason of the inconsistency between the guilty verdicts and acquittals but ordered a retrial on a different basis.
9. In Mackenzie, Gaudron, Gummow and Kirby JJ noted that, although jury verdicts are ordinarily inscrutable, sometimes by reason of the verdict and other matters "there is placed on the public record an insight into the jury's thinking" (at 365). In this case, the evidence, the summing up, the jury verdicts and the jury note exposed the "jury's thinking" about manslaughter quite clearly, being a lack of satisfaction that the applicant's stabbing of Mr Freeman was "dangerous".
10. In Mackenzie, their Honours noted the distinction between legal or technical inconsistency and factual consistency, with the test for the latter being one of "logic and reasonableness" (at 366). However, their Honours added that respect for the jury's function has "[n]evertheless" resulted in a reluctance to accede to contentions that verdicts are inconsistent (at 367). Their Honours continued (ibid): "If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect." (emphasis added; citations omitted)
11. In respect of the jury's approach of taking a "merciful" view of the facts, their Honours cited with approval a passage from the judgment of King CJ in Kirkman at 593, which included the statement: "Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number… Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
12. However, the plurality in Mackenzie also recognised a "residue" of cases where the jury's verdict represented an "affront" to logic and common sense and "suggests a compromise of the performance of the jury's duty", "confusion in the minds of the jury", "uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law" (at 368). Nevertheless, their Honours observed that "[i]t is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside" (ibid).
13. The outcome in Mackenzie confirms the relatively high bar that must be overcome before a conviction will be set side in these circumstances. Their Honours described the differentiation between the jury's verdicts in that case as a "little difficult to understand" and involving "an element of factual inconsistency" (at 369). Nevertheless, their Honours concluded that that the verdicts were not "so repugnant and irreconcilable that they… require intervention" (ibid). Their Honours identified various bases for that conclusion, including the following (at 370): "Consideration of the factors mentioned by King CJ in Kirkman cannot be elevated to the point that 'mercy' on the part of a jury is always sufficient to justify apparent inconsistency between verdicts on alternative counts. But in this case, the jury would certainly have appreciated the seriousness for the appellant of verdicts of guilty on the perjury counts based on s 328 of the Act. This factor, and the judge's explanation of the separate and additional ingredient of 'intention', which the Crown had to prove beyond reasonable doubt, might have caused the jury to hold back: concluding that convictions on the counts based on s 327 of the Act were sufficient to meet the justice of the particular case." (citation omitted)
14. This aspect of reconciling (apparent) inconsistent verdicts, that is, by recognising that juries may apply their "innate sense of fairness", was reaffirmed in MFA at 631 (per McHugh, Gummow and Kirby JJ).
15. During argument on the appeal, Senior Counsel for the applicant, Ms Avenell SC, submitted that so much of this discussion which concerns merciful verdicts had no application in the present context because the prescription of a minimum sentence for an offence under s 25A(2) by s 25B meant that a verdict on that count is not to be regarded as "merciful" compared to a conviction for manslaughter. I disagree. The discussion in Mackenzie concerned a jury adopting a "'merciful' view of the facts". Such matters are to be assessed from the jury's perspective and not from someone with any knowledge of s 25B, much less the current sentencing patterns for manslaughter. From the jury's perspective, the offences under s 25A(2) and (1) were less serious offences. The jury could only consider them if the applicant was acquitted on murder and manslaughter and the jury was told that manslaughter required the more serious element of dangerousness attaching to the applicant's act.
16. In terms of the judgment in Mackenzie, this ground reduces to whether it can be concluded that the jury's verdicts represent some form of compromise of their duty, uncertainty about the differentiation between the offences, lack of clear judicial direction on the one hand, or can be explained at least in part by the jury adopting a merciful view of whether the applicant's conduct was dangerous on the other. An analysis of the verdicts, the summing up and the jury's question clearly suggests that the jury accepted the applicant deliberately stabbed Mr Freeman to some degree, but was not satisfied beyond reasonable doubt that it was dangerous.
17. More significantly, the jury's verdicts are explicable by reference to the scope for debate, in light of Adam Marshall and Dr Duflou's evidence, about the degree of force applied by the applicant in stabbing Mr Freeman, the evaluative nature of an assessment of dangerousness and the jury concluding that a conviction for an offence under s 25A(2) was sufficient to meet the justice of the particular case (see Mackenzie at 369−370; Kirkman at 593). I do not discern that the verdict was the outcome of some form of compromise by the jury in accepting any of the Crown witnesses, the applicant's case or any other matter bearing on his guilt on the offence under s 25A(2).
18. The Courts should exercise caution before concluding that a jury's verdicts are the result of compromise given that it involves the jury acting contrary to its duty (R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [136]; "TK"). The jury was seeking to perform its duty. In this case, the verdicts are not so "repugnant and reconcilable that they… require intervention" (Mackenzie at 369).
19. Before concluding this ground, it is necessary to return to the matter noted at [52] concerning the applicant's submission that the Court should carry forward the "logic" of the applicant's acquittals on murder and manslaughter to enter an acquittal on the offence under s 25A(2). This submission has its origins in the following passage from Mackenzie (at 368): "But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case." (emphasis added)
20. In TK, Simpson J (as her Honour then was and with whom McClellan CJ at CL and Latham J agreed) comprehensively reviewed the authorities concerning inconsistent verdicts (at [133]). Having identified the possibility of so-called merciful verdicts as discussed in Mackenzie and reaffirmed in MFA, her Honour added (at [134]): "Where the correct explanation [for the verdicts] is compromise, the accused person has received the benefit of an acquittal or acquittals to which he or she is not entitled. That is because a jury acting in accordance with its duty ought, if it be the case, to declare its inability to reach a unanimous (or, since May 2006, an appropriate majority) verdict. It is then a question for the Director of Public Prosecutions whether the accused person is to be tried again."
21. This passage points to an instance where a conclusion that verdicts are inconsistent does not lead to an acquittal but a retrial. In this case, had I accepted that the jury's verdict represented some form of compromise, it would have meant that the applicant received an acquittal for manslaughter to which he was not entitled. Nothing can be done to reverse that acquittal but it would not mean the applicant is entitled to an acquittal on the offence under s 25A(2). Instead, I would have ordered a retrial.
22. Nevertheless, it follows that I consider ground 1 should be rejected. I would grant leave to raise the ground but dismiss the ground.

Grounds 2 and 3: Leaving Offences under s 25A to the Jury

1. Grounds 2 and 3 of the notice of appeal can be dealt with together. These grounds provide as follows: "(2) Harrison J erred in directing the jury on the availability of alternative verdicts of guilty of assault causing death when intoxicated and assault causing death (or at least not withdrawing them after Jury Note 3), as it was directing the jury on the availability of an unreasonable verdict, as it would be a verdict based upon the act of Mr Smith causing Mr Freeman's death not being dangerous. (3) The leaving of assault causing death when intoxicated and assault causing death gave rise to a miscarriage of justice."
2. The complaint made by both of these grounds is that the trial judge erred in leaving to the jury the offences under s 25A(2) and (1) in circumstances where, so it was contended, there was no "viable" case under those provisions if the applicant was acquitted of murder and manslaughter. This was said to be so because the only sensible basis for an acquittal on manslaughter was if the jury had not been satisfied beyond reasonable doubt that the applicant deliberately stabbed Mr Freeman, a path of reasoning that would be fatal to proof of an offence under s 25A(2) or (1). If the jury was so satisfied, it was submitted that it inevitably followed that the act was dangerous and the applicant had to be convicted of manslaughter.
3. The duties of a trial judge extend to directing the jury with respect to any alternative verdict that is "reasonably open" on the evidence, notwithstanding any attempt by an accused to disavow it for forensic reasons (see Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246 at [78]−[83], citing James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [31]−[32] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; "Basanovic"). The most common circumstance in which a consideration of that duty has arisen in this Court is where the trial judge has failed to put to the jury an alternative count and the convicted person contends that this failure meant their conviction on the principal count was occasioned by a miscarriage of justice (see Basanovic; R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255 at [34]; Mifsud v R [2009] NSWCCA 313 at [48]−[50]).
4. However, the present context is different in that the applicant contends a miscarriage of justice was occasioned by the putting of an alternative count to the jury that was not "viable". One form of miscarriage of justice that can be occasioned by a trial judge putting an alternative count to the jury is that in some circumstances it can cause procedural unfairness to an accused, such as raising additional issues that the accused was not given a proper opportunity to address (Chand v R [2011] NSWCCA 53 at [61]−[65]; R v Lykouras [2005] NSWCCA 8 at [22]−[24]). Leaving that aside, I will assume, without deciding, that a miscarriage of justice could be occasioned by a jury being instructed on an alternative charge that was not "viable" on the evidence. Even so, an assessment of what is "viable" in this context would have to embrace the proposition that it is the sole function of the jury, not the trial judge, to decide evaluative matters such as whether the act of an accused was "dangerous". This was recognised by the trial judge and all the counsel who appeared at the trial. In the exchanges with the trial judge and their addresses, counsel clearly acknowledged that the jury might not be satisfied beyond reasonable doubt that some form of deliberate stabbing by the applicant was dangerous. Having regard to the jury's function and the scope for debate about the extent of force applied by the applicant in "stabbing" Mr Freeman that arose from Adam Marshall and Dr Duflou's evidence, there was a "viable" case under s 25A(2) or (1) to put to the jury.
5. As noted, no issue was raised on behalf of the applicant before the trial judge about whether the offences under s 25A(2) or (1) could be left to the jury.
6. I would refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise these grounds.

Proposed Orders

1. I propose the following orders: (1) Grant the applicant leave to raise ground 1 of the notice of appeal; (2) Refuse the applicant leave to raise grounds 2 and 3 of the notice of appeal; (3) Appeal dismissed.
2. BUTTON J: I agree with the Chief Judge at Common Law.
3. McNAUGHTON J: I agree with Beech-Jones CJ at CL.

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