Criminal Law - Appeal and new trial and inquiry after conviction - Particular grounds - Unreasonable or insupportable verdict - Where appeal dismissed - Murder - Self-defence - Probative force of evidence tending to negative self-defence.

M v R [1994] HCA 63; (1994) 181 CLR 487, applied.

Judgment Number: [2005] TASSC 113

1 The appellant appeals against his conviction for the murder of Nigel David Bigwood ("the deceased").

2 In the early hours of 15 August 2004, the deceased entered the yard of the appellant's residence armed with an axe. The deceased and the appellant met near the door to the appellant's residence. The appellant had a knife. The appellant struck the deceased with the knife a number of times, causing his death.

"... that the conviction was unsafe and unsatisfactory in that a jury acting reasonably could not have rejected self defence beyond reasonable doubt."

4 For some time it was the vogue to include in grounds of appeal an all encompassing ground to the effect that conviction was "unsafe or unsatisfactory". In M v R [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said of such a ground at 492 - 495:

"... the criminal appeal provisions which are in common form in this country allow a verdict that is unsafe or unsatisfactory to be set aside, notwithstanding that those words do not appear in the legislation. Section 6(1) of the Criminal Appeal Act 1912 (NSW), which is the relevant provision for present purposes, provides that the Court of Criminal Appeal must allow an appeal against conviction if the Court is:

'of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice'

provided that the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

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. Other terms may be used such as 'unjust or unsafe' (_Davies and Cody v The Kin_g [1937] HCA 27; (1937) 57 CLR 170 at 180), or 'dangerous or unsafe' (_Ratten v The Quee_n (1974) 131 CLR at 515). In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict (Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346 at 350-351; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 246, 250) . Questions of law are separately dealt with by s6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (Hayes v The Queen (1973) 47 ALJR 603 at 604). But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the _Criminal Appeal Ac_t in Hargan v The King, Isaacs J said [1919] HCA 45; (1919) 27 CLR 13 at 23):

'If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.'

And as the Court observed in Davies and Cody v The King (1937) 57 CLR at 180, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

'not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.'

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen (No 2) (1984) 153 CLR at 532; Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen (No 2) (1984) 153 CLR at 621).

But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. 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 (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443-444). 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 (Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462)".

5 The phrase "unsafe or unsatisfactory" does not appear in the Criminal Code Act 1924, s402(1), which sets out this Court's powers when dealing with an appeal against the verdict of a jury. It provides:

"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

6 As recognised in Jones v R (1997) 191 CLR 439, at 450 - 452, and in Gipp v R (1998) 194 CLR 106 [49] and [128], the formulation in M v R of the test for determining whether a verdict is unsafe or unsatisfactory is the prevailing authority. However, it has also been recognised that it is undesirable to resort to a ground that contends that a verdict is unsafe or unsatisfactory. In Gipp v R, Kirby J at [123] - [127] explained that it is preferable not to frame a ground of appeal in terms of whether a verdict or conviction is "unsafe or unsatisfactory" as this may mislead and direct a court's attention away from the statutory provisions which are the basis of the court's appellate jurisdiction. Callinan J, at [167] said:

"The criminal appeal provisions in this country do not contain the words 'unsafe and unsatisfactory'. Resort to the expression, an 'unsafe and unsatisfactory' verdict, as a ground of appeal should therefore generally be discouraged, but the requirement that Courts of Appeal consider the substance of such a ground when it is properly raised, by an independent assessment of the case remains. Appeals should preferably be framed by reference to the terms of the appeal provisions."

7 In Fleming v R [1998] HCA 68; (1998) 197 CLR 250, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ said at 256:

"The fundamental point is that close attention must be paid to the language of s 6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase 'unsafe and unsatisfactory' to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s 6(1) is expressed."

8 In Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416, Spigelman CJ, whose decision was agreed with by Abadee and Adams JJ, said at [43] and [44]:

"'Unsafe and unsatisfactory' is not, as such, a separate ground of appeal acknowledged in those terms by the legislative scheme. It has been convenient to use this formulation in the past for the purposes of separately identifying a ground of appeal, usually drawing on other grounds of appeal in a cumulative way, which is said to justify a verdict of acquittal rather than an order for a new trial.

It will be preferable in future to identify the ground of appeal as 'miscarriage of justice' or the other terminology in accordance with s6, with an appropriate degree of particularity in any heading."

9 A more accommodating approach was taken by the Federal Court in Tran [2000] FCA 1888; (2000) 118 A Crim R 218, where Black CJ, Weinberg and Kenny JJ at [82] and [83] said:

"Precisely how the High Court's comments about the phrase 'unsafe and unsatisfactory' are to be viewed in relation to criminal appeals to this Court under s 24(1)(b) of the _Federal Court of Australia Ac_t has not yet been the subject of any judicial exegesis.

The expression 'unsafe and unsatisfactory' has been regularly used over many years in appellate courts in this country and has acquired almost the status of a principle of the common law. It has been elucidated by the High Court on many occasions. The vice associated with its use as a ground of appeal lies in its catch-all nature and, in particular, in its failure to differentiate between a claim that the jury ought to have entertained a reasonable doubt as to the appellant's guilt, and a claim that there has been a material irregularity in the conduct of the trial. That failure is conducive to confusion on both sides and an inefficient use of an appellate court's resources."

10 The issues for this Court, which I distil from the appellant's sole ground of appeal, the submissions of his counsel, the authorities referred to, and the Code, s402(1), are whether there has been a miscarriage of justice, as on the evidence:

* it was not open to the jury to be satisfied beyond reasonable doubt that when the appellant struck the fatal blow he was not acting in defence of himself and that the force he used, in the circumstances he believed them to be, was not reasonable.

11 Having identified the issues for determination I do not find it necessary to set out my review of the evidence. I have had the advantage of reading the reasons for judgment prepared by Blow J. I agree with his analysis of the evidence and his conclusion that the appeal should be dismissed. I am not persuaded that the appellant has established any of the three potential bases for a determination that there has been a miscarriage of justice.

12 This is an appeal against a conviction for murder. There was a confrontation between the appellant and the deceased at a hotel in Zeehan after midnight on a Saturday night or Sunday morning, after which the deceased went to the appellant's home armed with an axe, and the appellant killed the deceased by stabbing him to the chest. At the trial, the critical issue was whether the Crown had proved beyond reasonable doubt that the infliction of the fatal wound was not an act of lawful self-defence. By his notice of appeal, the appellant contends that "the conviction was unsafe and unsatisfactory in that a jury acting reasonably could have not rejected self defence beyond reasonable doubt". In Fleming v R [1998] HCA 68; (1998) 197 CLR 250 at 256, the High Court referred to the phrase "unsafe and unsatisfactory" as "potentially confusing", and said that its use was "liable to mislead". However it is clear enough that the appellant contends that the verdict of guilty was unreasonable, that the jury should have entertained a reasonable doubt in relation to self-defence, and that there has therefore been a miscarriage of justice within the meaning of the Criminal Code, s402(1).

13 In an appeal of this nature, "the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused": Chidiac v R [1991] HCA 4; (1991) 171 CLR 432 per Mason CJ at 443. In M v R [1994] HCA 63; (1994) 181 CLR 487 at 494 - 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in such a case:

"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 (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443-444) . 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 (Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462)."

14 The law as to self-defence in this State is governed by the Criminal Code, s46, which provides as follows:

"A person is justified in using, in the defence of himself ... such force as, in the circumstances as he believes them to be, it is reasonable to use."

15 When self-defence is an issue, the Crown of course bears the onus of proving beyond reasonable doubt that the act in question was not done by way of lawful self-defence.

16 In determining whether the amount of force used in self-defence was reasonable or excessive, a jury must take into account the fact that a person defending himself or herself may be in a stressful situation with little or no time to think. In Palmer v R [1970] UKPC 2; [1971] AC 814 at 832, Lord Morris, delivering the judgment of the members of the Privy Council, said:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

That passage was cited with approval by Mason CJ in Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 at 650, and in Connaire v Austin 33/1988 by Green CJ at 2 and Neasey J at 6.

17 A person who believes he or she is about to be attacked does not necessarily have to wait for the assailant to strike the first blow or fire the first shot. Circumstances may justify the use of pre-emptive force in self-defence. See Beckford v R [1987] UKPC 1; [1988] AC 130; R v Lawrie [1986] 2 Qd R 502 at 505.

18 There was little or no dispute as to the facts leading up to the killing. The appellant lived alone at 10 Comstock Court. His 10 year old son was staying with him for the weekend. The deceased's partner, Ms Butterworth, lived at 6 Comstock Court. The deceased was staying with her. The appellant was a newcomer to the Zeehan area. The deceased was a long-term resident of the area. They had met only once before the night in question. There was no history of antipathy between them. On the Saturday afternoon, the appellant and his son visited the deceased at Ms Butterworth's home. The two men drank and talked, and did not argue. They went to the hotel together on the Saturday evening, leaving the appellant's son at Ms Butterworth's home in her care. She went to the hotel late in the evening. In the early hours of the Sunday morning, an argument developed between the two men. They fought. The appellant had a knife. (It was not the knife used in the killing.) Ms Butterworth received a wound to her arm. After the fight, the appellant left the hotel and went to Ms Butterworth's home to collect his son. On his way there, he was joined by a woman named Nardia Reader. As they walked side by side, she sustained an accidental cut to her hand from the knife being carried by the appellant. The appellant collected his son from Ms Butterworth's home. They went to the appellant's home. He decided to leave Zeehan, but could not find the key to his car, which was parked beside his house. He used a knife to attempt to force the ignition lock, but the lock broke, and the car was unable to be started. The deceased returned to Ms Butterworth's home, and discovered that both she and Ms Reader had received cuts. He asked Ms Reader's husband to go to the appellant's house with him, saying that he wanted to "sort him out". That invitation was declined. He went into Ms Butterworth's back yard, picked up an axe, and headed towards the appellant's home. Ms Butterworth attempted to physically restrain him from going there, but did not succeed. The deceased walked to the appellant's home, and walked up the front driveway carrying the axe. The two men met near the back door. The appellant was carrying the knife with which the fatal wound was inflicted. It was 41 centimetres long. The blade was 26.5 centimetres long, and sharp on both sides.

19 The deceased suffered a series of knife wounds, comprising cuts to the left hand and four stab wounds. His wounds were described during the trial by a forensic pathologist, Dr Lawrence. He gave unchallenged evidence that only one of those wounds, which penetrated the chest above the left nipple, could have been fatal. The cuts to the left hand suggested that the deceased had seized the knife by the blade before he was killed. It seems likely that he retained the axe in his right hand when he did so, since he was still gripping it after he had been stabbed and collapsed. He also suffered a stab wound which penetrated some 150 millimetres into the muscle of the right thigh, but Dr Lawrence said that wound would not have completely incapacitated him. He suffered a stab wound to the right side of the chest, but it penetrated only about 40 millimetres and did not go through the chest wall. He suffered a stab wound below the left nipple, to a depth of 55 millimetres, but it did not damage any vital structure. The apparently fatal wound left an incision 85 millimetres long. The knife penetrated some 16 centimetres into the body. Dr Lawrence said that it went through the lung; that it went through the major connection between the heart and the lung; that it went into the vein which drains blood from the left arm; and that it went through the second, third and fourth ribs. He said that death from that wound could have been instantaneous, but that it could have taken a couple of minutes. He explained that more force is needed to achieve the same penetration with a large knife rather than a small knife, apparently because of the resilience of the skin and of internal structures.

20 There were no eye witnesses to the fatal stabbing. Ms Butterworth said she last saw the deceased walking towards the appellant's house, holding the axe by the end of its handle with the head hanging down. She went looking for a police officer. The appellant's son said he saw the deceased arrive in the driveway; that he was holding the axe with both hands with the blade across his chest; that he stayed inside; that he heard his father yelling, but did not hear what he was yelling; that the deceased said a couple of things, but that he could not hear him saying anything (apparently meaning that he could hear not his words); that he said to both of them to "cut it out"; that he yelled that out more than once; that he then went and turned music on; that he heard the yelling stop, turned the music off, and ran out the door; and that he then saw his father standing near the deceased, who was lying on the ground next to the house.

21 The appellant called out for someone to get an ambulance. A police officer arrived shortly after that. The deceased was found to have a blood alcohol content of about 0.24 per cent. Dr Lawrence said that such a blood alcohol concentration would be likely to make a person more impulsive and less co-ordinated than normal.

22 One of the police officers who went to the appellant's house after the stabbing, Constable Gray, said that the appellant said words to the effect of "Nigel came down here ... He had an axe." A police officer who took the appellant away in a police car, Constable Cunningham, said that, after he placed the appellant in the vehicle, the appellant said, "He was coming at me with an axe". Constable Cunningham also said that the appellant said to his son, "This is the end of life as we know it. Mum's in charge now. You have to do what she says. Just remember I love you mate. It's not your fault. Just remember things happen, it's not your fault." Constable Cunningham said that, after he gave the appellant a cigarette at the police station, the appellant said, "I wouldn't wish this upon anyone, his family - I hope he's going to be all right. I feel that I didn't have a choice. I had to. ... You'll never know what it's like to do that to someone. I didn't want to but I didn't have a choice."

23 The appellant was interviewed by police officers within hours after the killing. The interview was videotaped. The tape was an exhibit at the trial. Towards the end of the interview, the appellant told the interviewing officers that he heard the deceased singing out from the road; that he could see him walking down with the axe; that he saw the axe handle; that his first instinct was to run inside and lock the door; that he thought that that was not going to do any good; that he thought the deceased was coming through whether he let him or not; and that the deceased was screaming and yelling at him. He continued as follows:

"... I could see that he was still very riled from the pub and that he was coming for me as quick as he could I guess to, I dunno, I dunno. I thought I was dead."

"Like I said he was coming in after me whether or not I was going to, whether I was out there or, but I didn't want it anywhere near my son. Nothing. I didn't want anything near my son."

24 When asked about details of the fatal confrontation, the appellant said that he could not explain certain things, and asked for a lawyer. The transcript records the relevant part of the interview as follows:

"KS How long was there before you went back outside. Was he saying, come out and, come out or

DW Look it's honestly it's not clear to me. I ah, it's not clear to me. I, sorry fellows I can't do this anymore. I just can't do it.

KS He's lying like at the front corner of the house. Is that where you met him.

KS Well he has received some horrific injuries which resulted in his death which I would like to ascertain how they've, how they occurred.

DW I thought he was going to kill me with the axe all right.

KS How do you explain a defensive wound on his hand which is, a defensive wound is a slice on his hand where he's

KS How do you explain the fact that you don't have any injuries.

25 After the interviewing officers agreed to suspend the interview, the appellant said:

"I don't want to incriminate meself, I don't know what youse are talking about and I can't help you I'm sorry, at this point."

26 Counsel for the appellant, Mr Richardson, made a forceful submission to the effect that, on the evidence before it, the jury could not reasonably have been satisfied beyond reasonable doubt that the fatal wound was not inflicted by way of lawful self-defence. Essentially his submission was that, in relation to the self-defence issue, the evidence adduced by the Crown lacked probative force to such an extent that any jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the appellant.

27 Mr Richardson referred to a body of evidence suggesting that the deceased was very angry with the appellant, including evidence that the deceased was not happy to learn that both Ms Butterworth and Ms Reader had suffered cuts; the evidence of his blood alcohol concentration; the evidence that he had attempted to obtain the assistance of Mr Reader to confront the appellant; the evidence that he armed himself with an axe; evidence that, just before setting out for the appellant's home, the deceased said, "Fuck the cops, I'll go and deal with him myself"; and evidence that the deceased could not be dissuaded from going to confront the appellant with the axe. Because of the wording of s46, the critical issue is what the appellant believed the circumstances to be at the time he used force, rather than what the deceased intended. However the evidence suggesting that the deceased was angry to the point of being practically uncontrollable would tend to suggest that, when he confronted the appellant, he would have seemed very hostile and would have been observed by the appellant to be very hostile.

28 Mr Richardson drew our attention to the evidence as to the situation in which the appellant found himself when the deceased approached his home with the axe. There was unchallenged evidence as follows. He had his 10 year old son with him. He had left his mobile phone at Ms Butterworth's place. There was no telephone at the appellant's house. He could not find his car keys. He had tried to start his car without them, and broken the ignition. He was a newcomer to the town. The deceased was approaching his house in the early hours of the morning armed with an axe.

29 In my view, any reasonable jury should have concluded that, on observing the deceased approaching his back door armed with an axe, the appellant feared that he would be killed or seriously injured. However the jury needed also to consider whether the appellant used force against the deceased as an aggressor, rather than in self-defence, and whether the force that he used was reasonable in the circumstances as he believed them to be. In relation to the reasonableness question, it was necessary to consider the timing of the use of force, and the extent of the force used.

30 Although there were powerful arguments in favour of an acquittal in this case, I think that there were a number of pieces of evidence that entitled the jury to conclude that, when the appellant inflicted the fatal wound, he was either not acting in self-defence, or using more force than was reasonably necessary, having regard to the circumstances as he believed them to be. There was the evidence from Dr Lawrence as to the various wounds, and as to the amount of force required to inflict the fatal wound. There was evidence that the appellant was not injured during the final confrontation. There was evidence that, in his descriptions of the final confrontation to the police officers, he did not claim that the deceased had tried to hit him with the axe, nor that the deceased had made any movement indicating that he was about to do so. It was open to the jury to regard Constable Cunningham's evidence of the appellant's words to his son as evidence of a consciousness of having gone too far, or of having committed a crime that would lead to imprisonment. The jury were entitled to regard the appellant's statements during the videotaped interview to the effect that he could not explain the four stab wounds or a wound to the deceased's left hand as evidence that he was unable to provide an innocent explanation for those wounds. The jury were entitled to disbelieve the appellant's assertion to the interviewing officers that the deceased was screaming and yelling at him since his son's evidence suggested that the deceased was not yelling, whereas the appellant was.

31 This was not a case that involved any significant question as to the credibility of witnesses since the appellant neither gave nor adduced evidence, and there was no significant challenge to the credibility of any Crown witness. However the question whether the Crown had proved beyond reasonable doubt that the fatal wound was not inflicted lawfully in the exercise of a right of self-defence was a question for a jury. In particular, the question of whether the degree of force used by the appellant was reasonable, assuming that he was acting in self-defence, was very much a question for a jury. In M v R (supra) at 493, Mason CJ, Deane, Dawson and Toohey JJ said the following:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen (No 2) (1984) 153 CLR at 532; Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511). But in answering that question the court must not disregard or discount ... the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence ...".

32 Having regard to that comment, and to the evidence I have referred to that tended to negative self-defence, I am not persuaded that this Court can say that the jury should have entertained a reasonable doubt in relation to the issue of self-defence. I therefore do not think it can be said that the verdict was unreasonable, unsafe or unsatisfactory, nor that there has been a miscarriage of justice. I would dismiss the appeal.

33 I have had the opportunity to read the reasons for judgment of Blow J and Evans J in this matter. I agree with those reasons and am not persuaded there has been a miscarriage of justice. I would dismiss the appeal.