AKB v The King - [2024] NSWCCA 169

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AKB v R [2024] NSWCCA 169
Hearing dates: 22 September 2023
Date of orders: 6 September 2024
Decision date: 06 September 2024
Before: Gleeson JA at [1]
Walton J at [113]
Dhanji J at [114]
Decision:
(1) Grant leave to appeal, including an extension of time.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction –murder – death by thermal injury – where Crown relied on alternative acts causing death – extent to which jury unanimity required – where standard unanimity direction given – where direction given with respect to alternative intentional acts causing death – whether failure to direct jury as to requirement of unanimity as to specific act causing death

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(e)
Crimes Act 1900 (NSW), s 18
Criminal Appeal Act 1912 (NSW), s 5(1)(a)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Chapman v The Queen [2013] NSWCCA 91; (2013) 232 A Crim R 500
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 290 A Crim R 570
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Lane v R [2017] NSWCCA 46
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Magnus v R (2013) 41 VR 612; [2013] VSCA 163
Pratten v R [2014] NSWCCA 117
Question of Law Reserved No 1 of 2022 [2023] SASCA 109
Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130
R v AKB (No 8) [2018] NSWSC 1628
R v Boreman [2000] 1 All ER 307
R v Brown (1984) 79 Cr App R 115
R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562
R v Klamo (2008) 18 VR 64; [2008] VSCA 75
R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177
R v Mead [2002] 1 NZLR 594
R v More (1988) 86 Cr App R 234
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179

Category: Principal judgment
Parties: AKB (Applicant)
Crown (Respondent)
Representation:
Counsel:
T F Woods (Applicant)
E Balodis (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/311049
Publication restriction:
By order made in the Supreme Court of New South Wales on 2 July 2018, publication of the name of the applicant is prohibited pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds contained in s 8(1)(e).

By order made in the Supreme Court of New South Wales on 12 July 2018, publication of the name of the deceased is prohibited pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds contained in s 8(1)(e).
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication or broadcast of the names of the child witnesses (referred to in this judgment as “WB” and “MB”), including referral to any information, picture, or other material that identifies either person or is likely to lead to the identification of either person, is prohibited.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

R v AKB (No 8) [2018] NSWSC 1628

Date of Decision:

2 November 2018

Before:

Davies J

File Number(s):

2016/311049

Judgment

GLEESON JA: In the early morning of 18 October 2016, the applicant’s wife burnt to death in the bedroom of her home at Guildford. The applicant was charged with the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). On 25 July 2018, after a jury trial before Davies J in the Supreme Court lasting 15 days, the applicant was convicted of the murder of his wife.
On 2 November 2018 the applicant was sentenced to a term of imprisonment of 36 years with a non-parole period of 27 years. The trial judge sentenced the applicant on the basis that the applicant had introduced petrol into the bedroom where the deceased had been sleeping and was responsible for the fire that started there and then prevented the deceased from leaving the bedroom: R v AKB (No 8) [2018] NSWSC 1628 at [14], [17]. There is no application for leave to appeal against the sentence.
The applicant seeks leave to appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He relies on a single ground of appeal:

There was an error of law or miscarriage of justice or both in that the trial judge did not direct the jury that they had to be unanimous as to the conduct constituting the offence, that is, the act causing death.

The issue raised by this ground is the extent to which a jury must be unanimous, not only as to its ultimate verdict, but also to the route taken. This is sometimes referred to as “extended jury unanimity”. The Crown case as to the actus reus causing the death of the deceased relied on two routes or pathways: the Crown’s principal case was that the applicant had caused the death of his wife by preventing her from leaving the bedroom when it was on fire. Alternatively, if the jury was not satisfied beyond reasonable doubt that the applicant had done this, the Crown case was that the applicant had caused her death by putting petrol in her bedroom or had ignited the fire. No objection was taken, nor redirection sought by defence counsel concerning the unanimity direction given to the jury. The applicant’s appeal is based on a claim of misdirection. It is said that the trial judge failed to direct the jury that they had to be unanimous as to the conduct constituting the offence of murder. The applicant contended that the unanimity direction given to the jury is an error of law or occasioned a miscarriage of justice. The Crown’s primary submission is that the trial judge did adequately direct the jury as to the need for unanimity on the Crown’s alternative cases as to proof of the applicant’s deliberate or voluntary act that caused death.
Extension of time: the applicant requires an extension of time to seek leave to appeal since the notice of appeal filed 3 May 2023 is almost five years out of time. An extension of time was opposed by the Crown given the lengthy delay; however, the extension should be granted as the delay has been sufficiently explained in an affidavit by the applicant’s solicitor affirmed 21 September 2023 and the ground of appeal is at least arguable. It is convenient to continue to refer to the applicant by that description.
Rule 4.15: since no objection was taken at trial to the adequacy of the trial judge’s directions with respect to unanimity, the applicant also requires leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise and rely on the asserted misdirection or omission to give a direction in terms of the appeal ground. Leave should be granted because if the applicant’s complaint is established, the omission to give the direction was not trivial, and it is in the interests of justice that the applicant has that question addressed.
Non-publication restrictions: the applicant and the deceased cannot be named given non-publication orders made by the trial judge pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7, on the ground referred to in s 8(1)(e). Nor can the deceased’s two children be named, nor can any matter that could identify them, or is likely to lead to their identification, be published or broadcast by reason of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Accordingly, references to the applicant, the deceased and their two children only use the descriptors adopted by the trial judge; the applicant is referred to on the Coversheet as AKB, his wife is referred to as the deceased or XY, and their two sons are referred to as WB and MB respectively.
For the reasons that follow I have concluded that the unanimity direction given to the jury as to the actus reus causing the death of the deceased was adequate and appropriate in the circumstances of this case. The applicant’s claim of misdirection should be rejected, and the appeal dismissed.

Background

The applicant and the deceased were married in Iran in 2005 when she was aged 16 years and the applicant aged 32 years. Shortly after the marriage they moved to Australia, and ultimately lived with their two sons in a 3-bedroom house on a battle-axe block in Guildford. As of October 2016, WB was aged 9 and a half years and MB was aged 6 years.
A sketch plan of the Guildford house in evidence (Ex LL) showed the front door entrance situated in the middle of the house, with a loungeroom on the right behind which was a kitchen and dining room area. On the left of the front door entrance was a corridor from the lounge room leading to three bedrooms; bedrooms 2 and 3 faced the front of the house and bedroom 1, which was adjacent to room 2, faced the rear of the house. Opposite to bedrooms 2 and 3 were a bathroom and laundry. The deceased slept in bedroom 2, the two boys slept in bedroom 3, and the applicant slept in the lounge room.
The relationship between the deceased and the applicant had deteriorated in the years prior to her death. In early October 2016, the deceased created a profile on a dating app using a different name and giving a number of details which were not correct. Through this means of communication she met a man. He need not be named and is referred to as “Z”. They saw each other a few times and formed an intimate relationship. The applicant was aware that the deceased intended to leave him. There was evidence from the two sons that the applicant and the deceased had argued on the night of Sunday, 16 October; the argument concerned the deceased’s use of “Viber”, a voice over IP and instant messaging software application. On Monday, 17 October 2016, the deceased and Z organised an apartment for the deceased to move into, although not with Z.
Also, on 17 October 2016 the applicant visited the Department of Human Services where he made a claim for a benefit, on the basis that he was separated. At about 9:00 pm or 9:30 pm that night the deceased went to bed in room 2. The two boys went to bed about 10:00 pm in room 3, next to their mother’s room.
At around 3.30 am on Tuesday, 18 October 2016, a fire occurred in bedroom 2 occupied by the deceased. Several neighbours were awakened by screaming from the house by the deceased. The neighbours observed that the house was on fire. At 3:34 am, the deceased, using her mobile telephone, rang triple-0 and said, “[c]all the police”. Her voice fell silent during the call. A compact disk of the “enhanced” triple-0 call lasting 4 minutes and 13 seconds was in evidence (Exhibit B). A consulting engineer, Mr Glenn Leembruggen, specialising in the field of audio-electro acoustics, gave evidence that he identified a noise structure that sounded to him like fire at about 2 minutes and 29 seconds into that call by the deceased.
During the fire the two boys were awakened by their mother calling out their names. They went to the door to their mother’s bedroom where the applicant was standing. The older son, WB, gave evidence of the applicant pushing the deceased back into the bedroom and closing the door which prevented her from leaving the burning bedroom. WB also said that he tried to open the door to allow the deceased out of the room, but the applicant would not let him, and that the applicant had done something to the door so that it would not open. The younger son, MB, gave evidence of the applicant not letting the deceased out of the bedroom. At trial, the defence challenged the reliability of the evidence of WB and MB. When outside the house, the applicant made a triple-0 call at 3:38 am regarding the fire.
Police officers arrived at the house at about 3:41 am. They observed a large amount of smoke coming from the house, and the left-hand side window of the deceased’s bedroom was all in flames. A police officer entered the front door of the house where he met the applicant and grabbed him by the shoulders and assisted him out. The applicant told the police officer that his wife was still inside. When asked where, the applicant replied, “in the room with all the fire”. The police officer went back into the house but could not get very far because the smoke was too thick. Other police officers arrived, some went inside the house in an attempt to save the deceased, however they were unable to do so as shortly after the roof began to collapse. The deceased died during the fire.
Crime scene officers carried out an inspection of the fire-damaged house with the assistance of specially trained dogs to detect whether or not any accelerant was to be found. They found that the fire started in the deceased’s bedroom at a place close to the foot of the bed near where a radiant bar heater was located. Accelerant in the form of petrol was found on what appeared to be a rug or some other material which was located near where the fire was found to have started in the deceased’s bedroom. Some of the accelerant was also found at a place in the living room of the house where the applicant slept. The bar heater was identified as a possible ignition source of the petrol but an examination of the bar heater by an electrical engineer, Mr John Gardner, was unable to determine if the heater was on or off prior to the fire.
The applicant was arrested by police and taken to Merrylands Police station on the morning of 18 October 2016. When asked by police, through a Farsi speaking interpreter, whether he had knowledge about how things happened, the applicant responded through the interpreter:

I don’t have knowledge and information about that. That was a three-bedroom property with lounge. Because of my back problems I was sleeping all the time in the lounge room. On the floor in the lounge room. My wife was sleeping in one of the main rooms, the master room, and the kids were sleeping in the other room, so I don’t have knowledge.

The applicant participated in two recorded interviews with police, referred to as an ERISP, on 18 October 2016: the first at 2:25 pm with the assistance of a Farsi interpreter, and the second at 8:43 pm in the presence of the applicant’s brother and with the assistance of a different Farsi interpreter. In his first interview the applicant denied using any sort of flammable liquid to cause a fire in the deceased’s bedroom; denied that he was involved in starting the fire at his home; denied that he had an argument with the deceased on “the previous morning or evening”; and denied being involved or causing any harm to his wife. He said, “there’s been no arguments or things between us, it has happened before but not now”. He also denied that he took measures to stop the deceased from leaving the room or that he prevented her from leaving the bedroom as the fire progressed in the room.
In his second recorded interview, the applicant denied that once the fire had started, he took measures to stop the deceased from leaving the room. He said, “it never happened”, that he did his best to take her out of the room, but he could not. When asked whether his eldest son, WB, had tried to open the door to allow the deceased out of the room, the applicant said:

My eldest son was behind me, and I was in front. And I was, my hand was on his arm. We were watching, and then I saw the fire getting bigger, I just dragged him out.

The evidence at trial

The evidence in the Crown case included (i) medical evidence of the pathologist who conducted an autopsy on the deceased on 19 October 2016, (ii) evidence of Mr Leembruggen, who had examined the disk containing the triple-0 call made by the deceased, (iii) evidence of neighbours who attended the scene of the fire, (iv) evidence of police and paramedics who attended at the fire, (v) evidence of the police and fire investigation, (vi) expert evidence from four witnesses relating to examination of exhibits from the criminal investigation relating to the cause of the fire, (vii) evidence of the deceased’s two sons, WB and MB, given in recorded interviews with police and in cross-examination at trial, (viii) evidence concerning the arrest of the applicant and his first and second ERISP, and (ix) evidence given by friends and relatives of the deceased.
It is not necessary to summarise the evidence at trial, given that there is no ground of appeal or submission that the conviction should be quashed because it is unreasonable or cannot be supported having regard to the evidence: s 6(1), Criminal Appeal Act. However, it is of assistance to briefly refer to some of the evidence in the Crown case as this provides the context in which the Crown’s alternative cases as to the act causing death were put to the jury: see [29] below.
Expert evidence: The medical and other expert witnesses included:

Dr Bernard I’Ons, forensic pathologist, who carried out the autopsy on the deceased’s body. He found the cause of death was consequences of thermal injury and confirmed that much of the deceased’s body was incinerated;

Mr Bernard Daly, a senior fire fighter with Fire & Rescue NSW who was the lead investigator in the fire at the Guildford house. He determined that the fire originated in bedroom 2 (where the deceased was sleeping), that the fire had been burning at floor level for a “long time”, and in his opinion “this fire was incendiary”, by which he meant that the fire was deliberately set with intent to cause fire to occur in an area where the fire should not be; and

Dr Katrina Burda, senior analyst in ignitable liquids with the Criminalistic Unit of the Forensic and Analytical Science Service (FASS) who examined wet ashen debris samples from the fire and two pieces of a partly heat-affected multicoloured rug fabric sampled from Marker C on the floor at the end of the deceased’s bed. In relation to the entirety of sample, petrol was detected. The profile of that petrol was “very fresh”. On closer inspection, Dr Burda observed that the rug fragments had an “orange underlay” or “rubber underlay”, which was intact and not heat affected. Dr Burda’s interpretation was that this underlay was the source of the petrol. Her view was that the petrol might have penetrated the fabric and landed on the rubber underlay where it would be absorbed. In cross-examination, Dr Burda accepted that freshness of the petrol alone did not support an inference as to how long it had been there. When asked whether she would have expected someone to smell it had it been there for a day or two, Dr Burda gave this qualified answer:

If the petrol is not extremely evaporated and it still does contain the main constituent which is toluene and that’s what we can smell, or xylenes and that’s what we can smell, I would say yes, it smelt, it was there and maybe it wasn’t there for very long, but this is a very hypothetical answer.

DSC Neil Welschinger, the crime scene officer, also accepted in cross-examination that there was no indication as to how long the petrol had been there.

WB’s evidence: WB participated in two recorded interviews with police on 18 October 2016, at 1:06 pm and at 3:59 pm, and a third recorded interview on 16 November 2016. In his first interview, he did not mention the applicant preventing the deceased from leaving the bedroom. He also referred to a dream he had on the night of the fire that something dangerous was going to happen, which he said was “[l]ike the fire, it was the same exact thing”.
Prior to his second interview on 18 October 2016, WB told DSC Tanya Byrne-Hickman, and confirmed in his second interview, that the applicant prevented the deceased leaving the burning room. WB said:

So my dad was near the door like when, when the fire started I woke up and I was trying to open the door by my dad wasn’t, didn’t let me and he, he left my, my mum in there and then, and then like he done something I don’t know what but and then he done something so I couldn’t open the door.

WB confirmed that he had told DSC Byrne-Hickman that “it was on purpose” and said, “[y]eah it was on purpose but he, he actually told me it was an accident”. WB said he did it “many times” and “he didn’t let my mum in”. WB also confirmed he had told DSC Byrne-Hickman that the applicant would not let him open the door, by doing something to the door. Asked if this is something that he just remembered, WB said “Yes”. He said that he had not told DSC Byrne-Hickman the first time they had talked, because he had been thinking and then remembered it and went to tell her that he had just remembered. WB said the applicant was near “the door that my mum was in and the bedroom that was on fire”; the door was “a little bit open and he done something to the door like, and then I couldn’t open it”. WB said he did not know what the applicant did, “he just touched the top of the door and then like something happened I didn’t see”. WB said that when the applicant would not let him in, “[h]e was like pulling it or pushing it so like pulling it back or pushing it back so I couldn’t open it”. He said his mum was trying to get out. The applicant told him to go outside, and WB said “O.K.”, but he was still trying to open it and the applicant pushed him outside.
WB agreed he had told DSC Byrne-Hickman that his father had done something really wrong and that it was on purpose, and what he thought he had done really wrong was “[h]e’s left my mum when there’s a fire in the bedroom”. When asked why he thought the applicant had done it on purpose WB said “[b]ecause he was actually like pulling it back like he was trying hard to pull it back so I couldn't open it”. Asked to say more about that, WB said “[s]o and then like my dad pushed my mum into the fire, in, in the blanket and then she just got up and then tried to get in and my, my dad kept pushing her”. WB said he was next to him and was trying to make the applicant’s hand “go that way (demonstrates) so I could, so he couldn't push my mum into the fire”. The applicant told WB not to touch him and to go outside. The interview of WB continued:

Q41   And what did mum say?
A    Mum said, Open the door, open the door, and then like my dad said nothing, he kept pushing my mum.
Q42   How was he pushing your Mum?
A    Like, like so the first time pushed her with the hand and the second time he pushed her with the door like he hit her with the door and then she fell and then she, he kept doing it because my mum wanted to get out of the bedroom.
Q43   You told me that dad said it was an accident?
A    No, no I said it was on purpose, he done it on purpose because even if he said it was an accident he might lie. I'm not lying.
Q44   But did dad say to you that it was an accident or something else?
A    Yeah he said it was an accident, but he was actually doing it on purpose.

MB’s evidence: MB participated in a recorded interview with police at 3:13 pm on 18 October 2016 and another interview on 16 November 2016. In his first interview, MB said that he told his father, “[g]et Mum out. And let her go outside”, but his father would not, because his mother and WB had annoyed his father. MB said that both he and WB told the applicant to let the deceased out, and the applicant said “No” and told them to get out. In his second interview, when asked whether the applicant was trying to help his mother, MB said that the applicant “[o]nly let WB out” and the applicant did not let his mother out “[b]ecause they were fighting”.
The applicant did not give evidence at trial.

The Crown case

The Crown case as opened to the jury was that, based on the account given to the police by WB, the applicant had caused the death of his wife by preventing her from leaving the bedroom when it was on fire, by holding the door shut. The Crown told the jury that this would be sufficient to prove the applicant guilty of murder. Alternatively, the Crown relied on a circumstantial case that the applicant had caused the death of his wife by putting petrol in her bedroom or had ignited it.
In opening address, the Crown acknowledged that Mr Gardiner, an electrical engineer who had undertaken a forensic examination of the crime scene, could not rule out that a radiant heater in bedroom 2, if it had been on and if it was placed close to bedding or furniture in the deceased’s bedroom, could have been associated with the cause of the fire. As to this possibility, the Crown told the jury that it relied upon the presence of petrol in the bedroom and other matters to prove the fire was deliberately lit, and that this was an important part of the Crown case to meet any suggestion by the defence that the fire was tragic accident. However, the Crown also told the jury that it was not necessary to find that the fire was deliberately lit in order to convict the applicant.
In closing address, the Crown again put to the jury its principal case that it would be sufficient for the jury to be satisfied at least that the applicant had prevented the deceased from leaving the bedroom when it was on fire. The Crown said that its case was both “direct”, relying on the evidence of WB and MB, and “circumstantial”, referring to factual circumstances which the Crown described “as like strands in a cable, none of … these circumstances, you are required to be satisfied of beyond reasonable doubt”. The Crown told the jury that the factual circumstances it relied upon for its alternative case were:

1.   That the accused was present in the house at the time when the deceased went to bed up until the fire.
2.   That the accused had argued with the deceased about Viber on the Sunday; that was the evidence of WB and MB.
3.   That [Z] had sent messages, including messages of endearment to the deceased on Viber to her during that last week.
4.   That the accused had received the text messages from the deceased on 10 October 2016 telling him it was over and on 13 October 2016, apparently, saying that she would see the children three times a week (Exhibit KK).
5.   That the jury could take the view that the deceased was very happy when she was with [Z], but not when she was with the accused.
6.   That in the triple-0 call the deceased was apparently wanting the police to come.
7.   The evidence from WB, that the deceased was calling out for WB, and he said nothing about calling out for the accused. The accused in his interview, said the deceased was "calling for WB and [AB]" but there's also evidence from one of the neighbours, that she was calling out for [a neighbour by her first name, being Ms AD].
8.   The evidence, if you accept it, that the relationship between the accused and the deceased was bad.
9.   The DNA found on the left thumb and finger of the accused was consistent with being the deceased’s DNA.
10.   The swatches of bloodstain on the accused's shirt, with a DNA profile was consistent with the deceased (Exhibit H).
11.   The fire extinguisher on the wall remained unused.
12.   That the accused rang triple-0 at 3:38 am, which the Crown submitted was too late and the accused would know it was too late.
13.   That petrol had been introduced into that room.

The defence case

The defence case as opened to the jury put in issue three matters. First, the reliability of WB’s evidence was challenged on the basis that he had given two versions of events to the police on 18 October 2016. Second, the defence drew attention to the applicant’s ERISP in which he said that when he got outside the house on the last occasion, he tried to hose down the fire. Third, the defence suggested that the fire was accidental – referring to the presence of the radiant heater in the deceased’s bedroom and, as the Crown had said in its opening, the examination of the heater by Mr Gardiner, who could not rule out the possibility that the fire was caused by the radiant heater.
In closing address, the defence submitted that the evidence of WB that the applicant had prevented the deceased from leaving the room could not be accepted beyond reasonable doubt. The defence said of WB’s first recorded interview in which he referred to a dream about a fire, that it was possible that WB was putting things that had happened in the dream, together with the things that he had in fact seen. The defence also emphasised that WB did not say anything in his first recorded interview about his father preventing his mother from leaving the bedroom or pushing her back inside, and that it was not until WB’s second interview that wrongdoing was suggested. The defence said of MB’s account that it was contaminated because it was not derived solely from his own memory of what took place, given that MB had spoken to WB, before MB’s first recorded interview.
As to the cause of the fire, the defence acknowledged that Mr Gardiner had given evidence that he had no way of telling whether the heater was on (prior to the fire), but submitted that the heater could have caused the fire if it was on and directed at and in close proximity to combustible materials. In support of this possibility, the defence referred to the applicant’s recorded interview in which he said that the heater in the deceased’s bedroom was on that night, and WB’s recorded interview in which he said that the heater was on when he went into his mother’s bedroom, before he went to sleep at about 9:30 pm.
As to the presence of petrol in the deceased’s bedroom, the defence submitted that there was no evidence as to how the petrol got there, what it was on, how long it was there, how much of it was there, or that the applicant “put it there”. The submission continued, referring to the absence of petrol on the applicant’s clothing or hands:

… There was no petrol found on his clothing. No petrol on his hands. No petrol on anything that he had touched, and of course that bedroom was not a bedroom he slept in. It was his wife’s room. Whether she had something in there that had petrol in it that caused this, I can’t answer that and nor can you, but you have to be satisfied that there is no possibility that it was introduced by her or was introduced in something that she put there.

The defence put to the jury that they had to be satisfied beyond reasonable doubt that it was the applicant who put the petrol in the room before they could be satisfied that he was the person who started the fire. The defence also put to the jury that it was reasonably possible that the fire started accidentally, and said of the Crown’s alternative cases:

… also in order to convict if you are not satisfied that he started the fire then you have to look at whether your Crown’s alternative hypothesis he held the door closed so that his wife would die in front of his two children. (sic) Pushing his wife into the fire. (Emphasis added.)

Finally, the defence put to the jury that on two occasions after he got the children out, the applicant went back into the house, that he tried to put the fire out by hose, that he rang triple-0 and tried to get the fire brigade there, and the jury could not be satisfied that the applicant “started the fire or that he tried to prevent his wife from leaving that bedroom”. (Emphasis added.)

How the issue of unanimity was dealt with at trial

In the absence of the jury, the Crown raised several matters arising from the defence closing address. Relevantly, the Crown objected to the defence submission that the evidence of petrol in the bedroom was a “link in the chain Shepherd-type proposition” that required proof beyond reasonable doubt and not, as the Crown had put to the jury, a “strand in the cable” circumstantial fact that did not require proof beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573; [1900] HCA 56 at 579-580.
A debate followed between counsel and the trial judge regarding the Crown’s principal case and its alternative circumstantial case which involved the petrol and the other factual circumstances listed at [31] above. Defence counsel initially accepted that her understanding of the Crown’s circumstantial case was “wrong”. However, on the following day, defence counsel indicated a concern that the Crown’s circumstantial case had the petrol as a link in the chain, not a strand in the cable of the circumstantial case and submitted that “the essential link in the chain is the petrol”.
The Crown responded that the defence had conflated the ultimate finding that the jury would be invited to reach on the circumstantial case, namely, that the applicant had introduced the petrol into the bedroom and caused it to ignite in some way, whereas the circumstantial fact (being a link in the chain) was that petrol had been introduced into the room. After further debate, the Crown agreed with the defence submission that the direction with respect to the circumstantial case should be in terms of the jury’s satisfaction beyond reasonable doubt that the applicant had “introduced the petrol or ignited it” (emphasis added). The Crown also clarified that the circumstantial case was available to support WB’s evidence.
Ultimately, the Crown and the defence both confirmed that they were satisfied with the trial judge giving a direction as to the deliberate act causing death in the following terms:

If you do not find he prevented her leaving the room the Crown says the deliberate act was the introduction by the accused of petrol to the room where the heater was or the igniting of the petrol.

The summing up

Given the confined scope of the appeal ground it is only necessary to refer to some parts of the jury directions.
Standard unanimity direction: having dealt with the burden and standard of proof, and the means by which a jury could reason towards a verdict, the trial judge gave a standard unanimity direction:

In a criminal trial there is only one ultimate issue that a jury has to decide, has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is yes, the appropriate verdict is guilty. If the answer is no, the verdict must be not guilty. And under our system of law your verdicts (sic), whether it is guilty or not guilty, must be unanimous. Now that is not to say each of you must agree on the same reasons for the verdict. However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises on the evidence and is in dispute. The obligation rests with the Crown on the elements of the charge, that is the essential facts that go to make up the charge and they must be proved beyond reasonable doubt, and shortly I will outline for you what are the elements of the charge or the essential facts that the Crown must prove beyond reasonable doubt.
In a criminal trial there is only one ultimate issue that a jury has to decide, has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is yes, the appropriate verdict is guilty. If the answer is no, the verdict must be not guilty. …
And under our system of law your verdicts [sic], whether it is guilty or not guilty, must be unanimous. Now that is not to say each of you must agree on the same reasons for the verdict. You may individually rely on different parts of the evidence or place different emphasis on different parts of the evidence, but by whatever route you reach your decision the final decision of guilty or not guilty must be the decision of all of you unanimously. (Emphasis added.)

The Crown’s principal case: the trial judge directed the jury that the Crown’s principal case was that, based on acceptance of the evidence of WB and MB, the jury could conclude beyond reasonable doubt that the applicant actively prevented the deceased from escaping from the burning room, and that the Crown also relied on the circumstantial evidence to support WB’s evidence principally, and MB’s as well, that the act causing death was that the applicant prevented the deceased from leaving the room. The judge told the jury that he would come back and remind them of the circumstances that the Crown relied on, which he did: see [54] below.
Elements of the offence: there is no issue that the trial judge correctly instructed the jury as to the elements of murder, both in his written and oral directions. The written directions in MFI 30 set out the elements of the offence as follows:

(i)   the death of XY;
(ii)   that it was the act of the accused that caused her death;
(iii)   that the act was deliberate;
(iv)   that the act causing death was done with either (a) an intention to kill the deceased or (b) an intention to inflict grievous bodily harm (which means really serious physical injury) upon the deceased;
(v)   that the act was done without lawful excuse, ie, that his act was not done in self-defence.

After instructing the jury that:

Unless the Crown proves beyond reasonable doubt each and every one of those elements (1) to (5) you must find the accused not guilty,

the trial judge took the jury through each element of the offence, noting that the first element (death of the deceased) was not disputed, and the fifth element (lack of lawful excuse) was not in issue.

With respect to the second element (act causing death), the trial judge directed the jury as to the alternative factual bases of the Crown case and the response by defence counsel:

… As to the second element, that is that it was an act of the accused that caused the death, the Crown says it was either the accused preventing the deceased from leaving the room that killed her when there was a fire burning in the room or it was the setting fire to the room in the first place that killed her. Now the accused says the fire was an accident caused by a bar heater probably igniting the blanket or bed clothes. The accused denied pushing his wife back into the burning room. He says he tried to find her in the room, but he could not. (Emphasis added.)

With respect to the third element (deliberate act), the trial judge directed the jury that they had to find that the applicant prevented his wife from leaving the bedroom, or introduced the petrol where the heater was or lit it:

Now in relation to the third element which is that the act was deliberate you have to distinguish here between deliberate and intention. We come to intention in element four. A deliberate act is an act that is not a voluntary act, that is a voluntary act is one that is willed by the deceased. A spontaneous unintended reflex action is not a voluntary act. If you find that the accused prevented his wife from leaving the room the Crown relies on [WB’s] evidence in particular that his preventing her from leaving the room was “on purpose”, that is what [WB] said, and not an accident as [WB] said the accused told him. If you do not find that he prevented her from leaving the room the Crown says the deliberate act was the introduction by the accused of the petrol to the room where the heater was or the igniting of the petrol. I will come back to [WB’s] evidence about that a little later. (Emphasis added.)

The italicised direction in the passage above reflected the terms of the direction agreed between counsel, referred to at [41] above.

With respect to the fourth element (intention), the trial judge directed the jury:

In relation to the fourth element, this is the element about intention, the Crown must establish not only that it was the accused’s act that caused her death but that it was done with what is called the requisite state of mind. Murder can be committed relevantly for this case in one of two ways, the accused can intend to kill or he can intend to cause grievous bodily harm, that is really serious injury. Here the Crown says the accused’s act was done in either way but principally relies on intention to kill. Now intention may be inferred or deduced from the circumstances in which the death occurred and from the conduct of the accused person before, at the time or after he did the specific act or acts which caused the death,

and continued:

… the Crown contends that if you accept the evidence of [WB] and [MB] that the accused prevented the deceased from leaving the room, in those circumstances the accused intended to kill the deceased. If you are satisfied the accused introduced the petrol to the room and caused it to ignite by whatever means when the deceased was in the room, the Crown similarly contends the accused intended to kill the deceased.

Following a short adjournment, the trial judge corrected his directions with respect to the third and fourth elements, and instructed the jury:

Members of the jury, I just need to correct two things I said to you just before morning tea. In relation to the third element of murder which is that the act was deliberate, what I should have said to you is that an act is not deliberate if it is not voluntary, that is if it is not willed by the accused. I think I put the “not” in the wrong place before.
Secondly, when dealing with the question of the accused’s intention I said to you that that is not to be viewed objectively, it is his intention that matters and I said to you that the Crown contends if you accept WB and MB’s evidence that the accused prevented the deceased from leaving the room, in those circumstances the Crown says the accused intended to kill the deceased. Then on the alternative case I should have said this to you, “That if you were satisfied that the accused introduced the petrol to the room where the heater was or caused it to ignite by whatever means when the deceased was in the room, then similarly the Crown contends the accused intended to kill the deceased”. (Emphasis added.)

The trial judge summarised the evidence in the Crown case and the response by the defence that the fire may have been an accident caused by a radiant heater in the deceased’s bedroom. In addition to directing the jury that no-one saw who lit the fire and no-one saw who introduced the petrol into the bedroom, the judge directed the jury that the evidence showed only that the heater was on earlier in the night than the time of the fire, and that it was open to the jury to find that there was no evidence of whether or not the heater was on when the fire started.
Crown’s circumstantial case: the trial judge instructed the jury that the Crown did not put its circumstantial case in the manner referred to in defence counsel’s submission – that the jury had to be satisfied beyond reasonable doubt that the applicant was the person who put the petrol in the bedroom before they could be satisfied that he was the person who started the fire. The judge directed the jury:

Now, that is not the way the Crown puts its case. I have discussed this with counsel this morning and Ms Davenport accepts that if you do not find the accused guilty on the Crown’s principal case, which is that the accused prevented the deceased from leaving the room and it was that which killed her, then when you come to consider the case based on circumstantial evidence you do not need to find each of the matters itemised as the circumstantial evidence beyond reasonable doubt. However, having considered all of the circumstances, you would have to be satisfied beyond reasonable doubt that the accused introduced the petrol or ignited it to find him guilty.
So, I will just say that again for you. You do not need to find each piece of circumstantial evidence beyond reasonable doubt, but if, when you have considered all of them, you would have to be satisfied beyond reasonable doubt that the accused introduced the petrol or ignited it to find him guilty. (Emphasis added.)

The trial judge also said of the Crown’s alternative cases:

Now, the Crown's principal case is that all it has to prove, from what WB and MB said, is that the accused prevented the deceased from leaving the room. But the Crown says that you can use the circumstantial evidence, which I am about to come to, to support WB's evidence that the accused, in fact, prevented his wife from leaving the room. But if you don't accept WB's evidence in that regard, then, in the alternative, the Crown says you might think that the presence of petrol was a very important piece of circumstantial evidence. The Crown says that it does not have to prove how the fire was lit, although the Crown case is, ultimately, that the accused was responsible. Now, in the Crown's circumstantial case - this is, first of all, separate from the case that the accused prevented her leaving the room, but you can use it to support WB's evidence, - the Crown set out these matters, which taken together, he says, will prove beyond reasonable doubt that the accused is guilty. … (Emphasis added.)

The trial judge took the jury through the 13 factual circumstances which the Crown relied upon for its circumstantial case, at the conclusion of which the judge directed the jury:

Remember, members of the jury, what I said to you about circumstantial evidence. The circumstances are strands in a cable; they are not links in a chain. You have to consider them as a whole. Some will be weak; some will be strong. You do not have to be satisfied of each of them beyond reasonable doubt. They are not essential facts. They are just facts that go to make up the whole picture. But your final conclusion about whether the accused did any particular act that killed the deceased and that he intended to kill her or cause really serious injury must be a finding beyond reasonable doubt. (Emphasis added.)

As indicated, there was no request by the defence that the trial judge should withdraw or qualify any of the directions, or that he should give any further directions.

Principles: unanimity directions

There is no dispute as to applicable principles concerning jury unanimity. The parties diverged as to the application of these principles in the circumstances of this case.
First, ignoring the possibility of a majority verdict, each ingredient of an offence must be proved to the satisfaction of every member of the jury: Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179 at [64], citing R v Brown (1984) 79 Cr App R 115.
Second, whilst each juror is not required to follow the same evidential route in order to arrive at a unanimous decision as to the verdict, where there are different pathways or routes to determine guilt, a direction may be required that the jury must be unanimous in finding which one of several particular facts occurred in order to establish criminal liability of the accused for the offence charged.
In this regard, a distinction has been recognised between alternative legal formulations of liability based on the same or substantially the same facts and alternative factual bases of liability. In the first type of case, such as where the prosecution case relies upon the same facts to allege either murder or manslaughter, there is generally no need for a unanimity direction: R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 at [65] (Barr J, Sully and Ireland JJ agreeing). The present case was a charge of murder alone and does not come within the first type of case. In the second type of case involving alternative pathways or routes to a verdict, some form of unanimity direction may be required.
The principles are summarised by Phillips and Buchanan JJ (Ormiston JA agreeing) in R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at [57], where the joint judgment referred to the two types of cases:

… The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on ‘unanimity’ about one or other or more of those bases, at least if they do not ‘involve materially different issues or consequences’. (How far in cases of murder or manslaughter this qualification extends — having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales — is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence’. (Citations omitted; emphasis added.)

Thus, in cases of fraud where more than one fraudulent representation is relied upon in respect of an offence the jury should be directed that they must be unanimous as to which representation is made out as fraudulent: Walsh; Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84; Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30.
The statement of principle in Walsh has been applied or cited with approval by the High Court in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [45] and in numerous intermediate courts of appeal: see, for example, Fermanis v Western Australia at [60-[61]; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [75]; Magnus v R(2013) 41 VR 612; [2013] VSCA 163 at [32] and the cases cited at [33]; Chapman v The Queen [2013] NSWCCA 91; (2013) 232 A Crim R 500 at [28]-[29]; Pratten v R[2014] NSWCCA 117 at [45]-[46] and the cases cited at [47]; Zandipour v The Queen at [84]; Lane v R [2017] NSWCCA 46 (Lane v R (CCA)) at [18] and [136]; Country Care Group at [80].
The italicised words in the passage reproduced above from Walsh at [57] adopted the language in R v More (1988) 86 Cr App R 234, where Lord Ackner said at 252:

Clearly each ingredient of an offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). It is equally essential that a jury be directed in a manner that is easily comprehensible and devoid of unnecessary complications. Whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury's satisfaction each ingredient of the offence must depend essentially upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence. (Emphasis added.)

Thus, in the second type of case referred to in Walsh the need for some form of unanimity direction has regard to not only the legal elements of the offence, but also the way the prosecution and defence had put their case and the live issues at the conclusion of the trial. As the Victorian Court of Appeal said in Magnus at [46]:

What elements in the particular case are essential to criminal liability and thus require unanimity is, as Elias CJ observed in R v Mead “a practical question, not a technical one”. The essential points upon which the jury must agree extend beyond the statutory elements. What must be agreed turns not only upon the legal elements of the offence but also upon the factual elements essential to the case advanced for the prosecution and defence. Not only must there be unanimity as to the actus reus of the offence, but the elements must be “anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence. Without such agreement there is no common foundation for the verdict.” The jury verdict will not be acceptable if “based upon quite disparate findings relating to the very foundations upon which the verdict rests”. (Citations omitted; emphasis added.)

The statement of Elias CJ in R v Mead [2002] 1 NZLR 594 at [17] that the requirement for unanimity is “a practical question, not a technical one” has also been referred to with approval in Zandipour at [85]; and Pratten at [51].

Alternative pathways and unanimity

Whether some form of unanimity direction is required in cases of murder, manslaughter and the like as to the specific act that caused death, directs attention to the alternative pathways or routes to a verdict, the nature and quality of the potential causes of the fatal injury, and the live issues at the conclusion of the trial. The authorities refer to several relevant factors such as were the potential causes of the fatal injury part of one continuous episode, and not discrete acts or events, or were they quite separate or different in nature, and do they raise materially different causes of death or defences on each pathway to a verdict.
In Zandipour at [84], Warren CJ, Weinberg and Kaye JJA said of this distinction in the second type of case in Walsh:

The review of the foregoing authorities reveals that, in cases such as this, the Court has applied the principles stated in Walsh. In particular, where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance. (Emphasis added.)

In Ribbon v The Queen (2019) 134 SASR 328; (2019) 348 FLR 1 at [260]-[261], Doyle J (Parker J agreeing) spoke in similar terms:

In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation.
In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree. (Emphasis added.)

In Question of Law Reserved No 1 of 2022 [2023] SASCA 109 at [7]-[8], Livesey P emphasised the significance of materially different causes of death or defences on each pathway to a verdict:

The determination will involve an evaluation of the live issues remaining for decision at the close of the evidence, including whether they involve materially different issues or consequences, such as to whether there arise materially different causes of death or defences on each pathway. That may call for the exercise of a fine judgment, involving questions of both fact and degree.
Where the facts and presentation of the prosecution case suggest different evidentiary pathways, but not materially different issues and consequences in connection with the determination of guilt, cases such as Royall v The Queen; R v PL; R v McCarthy; and Zandipour, suggest that unanimity about those pathways in proof of an essential element of the offence is not required, particularly if the offending can be characterised as involving one transaction. By contrast, cases such as R v Klamo suggest that where the prosecution case relies on two or more distinct incidents, each representing a different way of identifying an essential element of the offending, the jury must be agreed about what comprised the essential element. (Citations omitted.)

In R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177 at [3]-[5], Kourakis CJ made some cautionary observations about the manner in which the authorities have discerned the distinction as to when some form of unanimity direction is required and expressed the view, in obiter, that the correct test is to ask: are the alternative bases mutually destructive? His Honour said:

First, it is not obvious to me that the taxonomy which has emerged from the authorities, of alternate party, factual and legal bases of liability is particularly helpful. All truly alternative bases for liability will depend on different factual matrices which have, or may have, different legal consequences.
Secondly, I am, like Peek J, concerned about the inherent uncertainty in the concept of “materially different issues or consequences”. Moreover, issues may be materially different and have contradictory consequences even when they are not separated greatly in “time, place or nature”.
... In my respectful opinion, the test which is most consistent with that principle is to ask — are the alternative bases mutually destructive? ... (Citations omitted.)

Peek J expressed a combination of approaches in McCarthy at [306], when stating that the relationship between the two prosecution cases advanced in that case as to the cause of death, gave rise to two questions:

Whether extended jury unanimity is required here largely depends upon the relationship between the striking case and the asphyxiation case, particularly having regard to two questions. First, whether there is an independent case to answer on each alternative. Second, whether the two cases are inconsistent, in the sense of being mutually destructive.

Before referring to the parties’ submissions in this case, it is of assistance to briefly refer by way of example to some cases applying the distinction to be made in the second type of case in Walsh. As this determination is fact specific, it involves questions of fact and degree: Question of Law Reserved No 1 of 2022 at [6] (Livesey P) and [151] (Doyle JA).

Cases where an extended unanimity direction was not required

Zandipour involved several possible acts causing death in the course of a short, violent attack lasting six seconds. Question of Law Reserved No 1 of 2022 involved death by a single stab wound inflicted by the accused at one of two locations during an altercation, relevantly, in the garden and driveway or on the roadway. Both cases were characterised as a single incident, not requiring an extended unanimity direction.
McCarthy involved a murder in which there were two potential causes of death: a series of forceful blows followed by a final act of asphyxiation, which both occurred within the same room (a garage), were separated in time by only minutes and were inflicted during a sustained assault on the deceased, in the sense of it being largely uninterrupted. Peek J found that on the “correct analysis” the prosecution’s case was that these two acts were part of a “single continuous process of assault by the appellant on the deceased”: [304]. Although these acts were presented as independent cases, his Honour considered them not to be inconsistent in the sense of being mutually destructive: at [313]. In addition to the lack of inconsistency between the striking and asphyxiation cases, his Honour took into account the small distance in time and space which separated the acts as reasons which favoured there being no requirement to provide an extended unanimity direction: at [315]-[316].

R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562 involved the accused stabbing of the victim with one knife and, within a short period of time, stabbing her a second time with a different knife. The two stabbings were treated as a “single criminal activity” (at [85]) rather than two separate offences, having regard to the short period of time which separated them; that the acts were of the “same character” within the “same confined area”; and that both stabbings occurred within the course of the same argument with the victim and were animated by a common grievance. No extended unanimity direction was required.

Cases where an unanimity direction was required

Klamo involved manslaughter of a four-week-old son by dangerous and unlawful act: the first act was dangerously shaking the baby on the night of his death. The second act was dangerously shaking the baby approximately one week before his death causing a subdural haemorrhage which re-bled on the night of his death. As the case involved factual alternatives constituting “two ‘discrete acts’, some days apart, each of which was said to be capable of constituting the crime charged” (at [76]), an extended unanimity direction was required.
R v Boreman [2000] 2 Cr App R 17 involved a murder charge where the act causing death was either an assault or a deliberately lit fire. The evidence left open the conclusion that there was an initial assault in which the deceased sustained injuries in his apartment after which the appellants left but returned some minutes or hours later and deliberately lit a fire. Those two acts were found to be “completely different acts, happening at different times”, possibly involving different intentions: at 29. An extended unanimity direction was required.
Lane v The Queen overlapped both types of cases described in Walsh as it involved alternative legal formulations of liability (murder or alternatively manslaughter) and the Crown case involved alternative factual bases for liability arising from two incidents which occurred during a street fight between the accused and the deceased during which the deceased fell to the ground on two separate occasions striking his head and died in hospital nine days later. An extended unanimity direction was required given the alternative factual bases for liability because the evidence led by the Crown did not permit the treatment of the two occasions on which the deceased fell and injured his head on the roadway as “constituting a single incident comprised of multiple contacts by the [accused] which need not be distinguished from each other” because the “contact between the two men was not so continuous or unified as to allow the case to be presented … as one of a single, composite assault”: Lane v R (CCA) at [111] (Fagan J). The difference of opinion on the conviction appeal concerned application of the proviso; Meagher JA and Davies J held that the proviso applied, whereas Fagan J, in dissent, held that it did not apply.
The High Court allowed an appeal, agreeing with Fagan J that the proviso could not be applied. The joint judgment of Kiefel CJ, Bell, Keane and Edelman JJ said at [42]-[43]:

… As Fagan J said, it is quite possible that some jurors might have been satisfied that a voluntary act of the appellant caused the first fall and did not trouble to consider the circumstances of the second. And the jurors who found the actus reus made out in respect of the second fall may have pooled their conclusions with those who found the actus reus made out in respect of the first fall to reach their verdict. For a juror to reason in that way would not be to depart from the directions the jury had been given.
… The case was left to the jury on the basis that it was open to it to convict the appellant by pooling individual jurors’ conclusions of fact on issues in respect of which it was required to be unanimous. It was, as a matter of fact, distinctly possible that some of the jurors may have been disposed to convict on the basis only of the first fall.

The joint judgment continued at [45]:

The appellant could not have been lawfully convicted by the jury unless it was agreed upon the action by the appellant that caused the deceased’s fatal injury. In the absence of a unanimity direction, the basis of the verdict is necessarily uncertain as to the act or acts of the appellant on which it was founded. The CCTV footage did not depict blows by the appellant connecting with the head of the deceased before either fall. An assessment of the reliability of the eyewitnesses was necessary. Further, there were live issues as to the dangerousness of the appellant’s acts and as to self-defence raised in respect of the acts of the appellant leading up to the second fall. As Fagan J recognised, the jury was not directed as to the different circumstances bearing upon these issues that were relevant in relation to each of the potentially fatal interactions between the appellant and the deceased. (Footnotes omitted.)

Submissions on appeal

It is common ground that the Crown case involved alternative factual bases of liability, that is, alternative factual cases as to the actus reus causing the death of the deceased. The parties diverged as to whether the directions given by the trial judge were adequate as to the need for unanimity as to the specific act that caused the death of the deceased.

The applicant

The applicant contended that the trial judge erred in omitting to direct the jury that they could not convict of murder unless they all agreed upon which act or acts had caused the deceased’s death. According to the submission, there is necessary uncertainty as to the factual basis for the applicant’s guilt.
It is said that given the way the Crown case was put to the jury, there was a risk that the jurors were not all agreed as to what constituted the physical act of the applicant causing the deceased’s death, because the Crown relied upon more than one act, allowing for the possibility that its principal case (which largely depended upon the reliability of WB’s evidence) was not accepted beyond reasonable doubt.
The submission continued that it would not have been permissible of the jurors to pool different conclusions they had individually reached as to what the applicant had done to cause the deceased’s death, such as one group of jurors doubting the reliability of WB’s evidence, yet accepting beyond reasonable doubt that the applicant had lit the fire and so caused the death of the deceased, and another group of jurors unsure how the petrol got in the bedroom and how the fire started, but were satisfied beyond reasonable doubt, based on the boys’ evidence, that the applicant had prevented the deceased from escaping the burning room and so caused her death.
The applicant said that it is also possible that some jurors might have reached a conclusion of guilt with respect to one of the alternative factual bases without troubling to consider the other. Reference was made to Lane v The Queen at [42], citing the remarks of Fagan J in Lane (CCA) at [154], which are set out at [79] above.

The Crown

The Crown disputed that the jury directions were uncertain as to the need for unanimity as to the act causing death. The Crown said that the direction given by the trial judge was in the form agreed by counsel and adequately took into account the applicant’s contention on appeal that a direction as to unanimity was required in different terms to that given at trial.
The Crown emphasised that the trial judge directed the jury that there were two alternatives, each of which the jury, and not merely some of them, were required to find proved, the second of which included a circumstantial case relating to the introduction of petrol and could be made out by lighting the petrol or leaving the heater near where it had been introduced.
It is said that it was sufficient for the trial judge to focus the jury’s decision as to unanimity onto the third element of murder, that is, whether what the applicant did was a deliberate act (causing death), based on the Crown’s alternative cases (see the directions reproduced at [48] above and [50] above), and these alternatives were put to the jury not merely as reasons for a verdict, but rather they were findings that the jury were required to make before they could reach the required state of satisfaction with respect to the element of the offence.
It is also said that the Crown’s circumstantial case was put to the jury in terms that were consistent with what had been submitted by defence counsel, and which when addressed by the trial judge referred to the whole of the jury reaching a conclusion as to the act that caused the death of the deceased (see the directions reproduced at [55] above).

The unanimity directions in this case

The unanimity directions that were given by the trial judge have been reproduced above and must be read in context, and as a whole with the other directions, having regard to the live issues at the conclusion of the trial. It was not in issue that the cause of death was death by fire. Nor was it in issue that petrol was found in the deceased’s bedroom in the debris samples obtained from the rug on the floor at the end of the deceased’s bed, and that the petrol was the accelerant responsible for the speed and intensity of the fire.
The live issues at the conclusion of the trial were:

whether the evidence of WB and MB was reliable as to what the applicant did after the fire had ignited;

whether, as the defence suggested, the applicant was acting not as a perpetrator but as someone who wanted to save his wife;

whether the applicant was responsible for the fire by either putting the petrol in the bedroom or igniting it;

whether the fire was accidental, as the defence suggested, including how the petrol got into the room, how long the petrol was there, and what ignited the fire, such as, was the radiant heater a possible ignition source if the heater was “on” at around 3:30 am when the fire started; and

whether, as the defence suggested, the deceased had falsely portrayed the applicant to others as the “wrongdoer” in the relationship, although the defence accepted that the relationship was “bad and coming to an end”.

As indicated, the Crown’s primary argument accepted that some form of unanimity direction was required to be given to the jury with respect to the act causing the death of the deceased, on the Crown’s alternative cases. The divergent approach of the parties in this Court as to whether the directions given were adequate, essentially reflected their different reading the message conveyed by the jury directions. In my view, on a fair reading of the jury directions, the unanimity direction was adequate and appropriate in the circumstances of this case.
First, at each point in the summing up when instructing the jury as to the elements of murder that were in issue, namely, (i) an act of the applicant caused the death of the deceased, (ii) a deliberate act, and (iii) intention, the trial judge directed the jury to decide whether they found that the applicant had caused the death of the deceased by preventing her from leaving the room when it was on fire or by introducing the petrol in the bedroom or igniting the fire, as alternative cases: see [47], [48] and [50] above.
Second, as the applicant acknowledged in his written submissions, the trial judge directed the jury that if they were not satisfied beyond reasonable doubt that the applicant had caused the death of the deceased by preventing her from leaving the room when it was on fire, the Crown’s alternative case was that the applicant had caused her death by putting petrol in her bedroom or igniting the fire. That is, the trial judge put the Crown’s principal and alternative cases to the jury as alternatives.
Third and importantly, the two alternatives as to the act causing death were not left to the jury in an open way, as in Lane v R (CCA) at [37]-[39] where the judge directed the jury with respect to the two incidents during a street fight that the “first issue is are you satisfied beyond reasonable doubt that it was a deliberate act of [the accused] that caused [the victim] to fall on either occasion the way he fell” (emphasis added): Lane v R (CCA) at [39]. In this case, the alternatives as to the act causing death were staged in the directions for the jury to consider one after the other: see [94] above.
Fourth, as the Crown correctly submitted, there was not, at any time, when the trial judge addressed the deliberate act or acts of the applicant that were alleged by the Crown to have caused the death of the deceased or the conclusion as to the Crown’s circumstantial case, an invitation to the jury that they could come to different conclusions, although they were allowed, as is usually the case, to reason to those conclusions in different ways.
Fifth, the applicant’s submission that it is entirely possible that some jurors might have reached a conclusion of guilt with respect to one of the alternative factual bases without troubling to consider the other, ignored that it must be assumed that the jury will act in accordance with the directions of the trial judge: Lane v The Queen at [47]. The trial judge instructed the jury to consider the Crown’s alternative cases as to the act causing death in a staged way one after the other. That instruction was inconsistent with the applicant’s speculation that some jurors might only have considered the Crown’s principal case whilst other jurors might only have considered the Crown’s alternative case.
Sixth, the applicant’s submission concerning the impermissibility of jurors pooling different conclusions as to what the applicant had done to cause the deceased’s death, raised a “straw man” argument. It ignored that the trial judge had directed the jury to consider the Crown cases in the alternative, in circumstances where the alternative cases relied upon a separate actus reus causing the death of the deceased: one was preventing the deceased leaving the room when it was on fire, the other was being responsible for the fire by either putting petrol in the room or igniting it. Nor was there any suggestion in the jury directions that the jurors could pool their conclusions on the actus reus causing the death of the deceased.
Seventh, nothing turns on the fact that the directions focused the decision as to unanimity onto the third element of murder, that is, whether what the applicant did was a deliberate act, rather than the second element of murder. In those directions, which are reproduced at [48] and [50] above, the trial judge used the word “you”, referring to the jury as a whole, and gave a unanimity direction in terms of the jury as a whole making a “finding” on the Crown’s principal case that the applicant prevented his wife from leaving the room when it was on fire. The direction continued that if that conclusion was not reached by “you”, being the jury as a whole, the jury was to consider the Crown’s alternative case that the applicant was responsible for the fire by either putting the petrol in the room or igniting it.
In directing the jury in these terms, there was no uncertainty that the jury could only convict the applicant if the jury were all satisfied beyond reasonable doubt, relevantly, on the Crown’s principal case that the act of the applicant that caused the death of the deceased was that the applicant prevented his wife from leaving the room when it was on fire, and if that conclusion was not reached the jury, the jury were all satisfied beyond reasonable doubt on the Crown’s alternative case that the act of the applicant that caused the death of the deceased was either putting the petrol in the room or igniting it.
Eight, although leave should be granted under r 4.15 to permit the applicant to raise and rely on the asserted misdirection (see [6] above), the absence of objection by defence counsel to the jury directions or an application for a redirection remains significant, as the Crown submitted, since it speaks of the satisfaction by defence counsel that the issues had been put in a way that was to the benefit of the applicant and consistent with applicable law. It should be concluded that this was a deliberate decision by the defence that based on the circumstances, including the agreed form of directions and the limited issues contested by the defence, defence counsel did not consider that a different form of direction was necessary to ensure a fair trial of the applicant: Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 290 A Crim R 570 at [55] (Kiefel CJ, Keane and Steward JJ).

Conclusion on primary argument

In my view, the unanimity direction given by the trial judge was adequate and appropriate in the circumstances of this case. The applicant’s claim of misdirection should be rejected, and the appeal dismissed.

Crown’s alternative argument

Given the above conclusion, the Crown’s alternative argument does not strictly arise. Nevertheless, the argument will be addressed for completeness.
The Crown’s alternative argument is that if the need for unanimity as to the Crown’s two alternative cases was not sufficiently addressed in the summing up, then no “extended unanimity direction” was required because the potential causes of the fatal injury, which were independently sufficient to constitute an element of murder, form part of a single continuous episode, and are not factually inconsistent.
This alternative argument is directed to the applicant’s complaint (which has been rejected above) that the jury may have been left in different groups: one accepting the evidence of WB, the other group being satisfied of the Crown’s circumstantial case. The Crown said that this distinction might not be as clear as submitted by the applicant because those jurors who accepted the evidence of WB as to the applicant preventing the deceased leaving the bedroom might have done so because of the Crown’s circumstantial case.
No difficulty arises insofar as the Crown meant by this submission that each juror is not required to follow the same evidential route in order to arrive at a unanimous decision as to the act causing death, on the Crown’s alternative cases. Thus, in order for the jury to arrive at a unanimous decision on the Crown’s principal case that the applicant had prevented his wife from leaving the bedroom when it was on fire, some jurors might have arrived at that conclusion by accepting the evidence of WB and also MB as reliable, whilst others might have arrived at that conclusion by also taking into account some or all of the factual circumstances as supporting the reliability of WB’s and MB’s evidence. Further, if the jury was not satisfied beyond reasonable doubt that the applicant had done this, in order for the jury to arrive at a unanimous decision on the Crown’s alternative case that the applicant had put the petrol in the bedroom or had ignited it, some jurors might have arrived at that conclusion by accepting all of the factual circumstances relied upon in the Crown’s circumstantial case, whilst other jurors might have arrived at that conclusion by accepting only some of those factual circumstances.
However, the Crown’s alternative argument went further. It is said that it would have been permissible for the jury to have pooled their conclusions on the actus reus that led to the death of the deceased. This submission is reflected in the rhetorical question which the Crown asked and answered in its written submissions:

Leaving that aside one might ask what would be wrong with one group of jurors accepting the Crown’s direct case and the other accepting the Crown’s circumstantial case? The applicant knew the case he had to face. The acts of the applicant alleged by the Crown were not separated by place, nature or indeed time. The Crown’s alternative cases did not present conflicting or mutually exclusive conclusions, noting what Kourakis CJ said in R v McCarthy (2015) 124 SASR 190 at [5]:

The correct test for determining if an extended unanimity direction must be given is to determine whether the alternative bases are mutually destructive. It is not necessary to decide if that was required in these circumstances. (Emphasis added.)

The major difficulty with the argument that pooling of the jurors’ conclusions in on the actus reus causing the death of the deceased was permissible, is that this was not the way the Crown case was put to the jury in its closing address or in the trial judge’s summing up. As indicated, the directions to the jury as to the act causing death on the Crown’s two alternative cases were staged for the jury to consider one after the other, on the basis that if the jury were not all agreed as to act causing death on the Crown’s principal case, the jury would go on and consider the Crown’s alternative case based on a different act causing death.
In these circumstances the Crown’s argument characterising its case as to actus reus that caused the death of the deceased as one continuous course of conduct, and not discrete acts or events, or as reliant on the cumulative effect of all the evidence led (such as in cases like Zandipour; Question of Law Reserved No 1 of 2022; McCarthy; and Heaney) proceeds on a misconception that this was the prosecution case that the applicant was required to meet at trial. It was not.
For this reason, it is not necessary to address the alternative argument that the Crown case can be viewed as one continuous course of conduct or as reliant on the cumulative effect of all the evidence led and therefore if it would have been permissible for the jurors to pool their conclusions on the actus reus that caused the death of the deceased (as distinct from some jurors relying on some or all of the factual circumstances in the Crown’s circumstantial case as supporting the reliability of the evidence of WB and MB in the Crown’s principal case, which the trial judge correctly instructed the jury they could do).
The Crown’s alternative argument should be rejected.

Conclusion

In my view, the appeal has failed. I propose the following orders:

Grant leave to appeal, including an extension of time.

Appeal dismissed.

WALTON J: I agree with Gleeson JA.
DHANJI J: I have had the considerable benefit of reading the reasons of Gleeson JA in draft. I agree with the orders proposed by his Honour, however I differ as to my reasons for those orders. I note that Walton J has expressed his agreement with the reasons of Gleeson JA. In these circumstances I can be relatively brief in expressing my own approach.

Was the jury directed as to extended unanimity?

I do not accept the argument put on behalf of the Crown that the directions given to the jury were such that the jury would have understood they were required to be unanimous as to either what has been termed the Crown’s principal case or as to the alternative case. That is, that they were required to be unanimous as to either the case that the applicant deliberately held the door shut to prevent his wife from escaping the fire, or the case that he deliberately lit the fire or created the conditions in which it would ignite. In each case, of course, the jury’s satisfaction of the commission of the relevant act or acts was to be accompanied by satisfaction that the act was done with intent to kill or to cause grievous bodily harm. I note that while the jury was directed that an intention to cause grievous bodily harm was sufficient, on the facts of the case, irrespective of the mechanism, once the deliberate act of the applicant was proved to have been done with an intention to cause harm to the deceased, satisfaction of an intention to kill inevitably followed.
As Gleeson JA points out, Davies J gave what is described as the standard unanimity direction. The jury was told (in a passage set out more completely by Gleeson JA at [43]):

“… under our system of law your verdicts (sic), whether it is guilty or not guilty, must be unanimous. Now that is not to say each of you must agree on the same reasons for the verdict. You may individually rely on different parts of the evidence or place different emphasis on different parts of the evidence, but by whatever route you reach your decision the final decision of guilty or not guilty must be the decision of all of you unanimously.”

The jury was thus instructed in clear terms that it was the destination upon which they must all agree, not the route by which they arrived there. This direction was given early in the summing up, together with directions as to the role of the jury and the onus and standard of proof. Thus, the unanimity direction formed part of the foundational directions applying in a criminal trial which overlayed the directions concerned with the consideration of the particular case.
It was following the directions referred to above that his Honour provided directions as to the elements of the offence. In giving those directions, his Honour gave the directions relied upon by the Crown as conveying to the jury that it was necessary that they be unanimous as to either its principal or alternative case. His Honour told the jury:

“Now in relation to the third element which is that the act was deliberate you have to distinguish here between deliberate and intention. We come to intention in element four. A deliberate act is an act that is not a voluntary act, that is a voluntary act is one that is willed by the deceased. A spontaneous unintended reflex action is not a voluntary act. If you find that the accused prevented his wife from leaving the room the Crown relies on WB’s evidence in particular that his preventing her from leaving the room was on purpose, that is what WB said, and not an accident as WB said the accused told him. If you do not find that he prevented her from leaving the room the Crown says the deliberate act was the introduction by the accused of petrol to the room where the heater was or the igniting of the petrol. I will come back to WB's evidence about that a little later.”

Following a break, his Honour corrected his directions. The jury was told:

“Members of the jury, I just need to correct two things I said to you just before morning tea. In relation to the third element of murder which is that the act was deliberate, what I should have said to you is that an act is not deliberate if it is not voluntary, that is if it is not willed by the accused. I think I put the "not" in the wrong place before.
Secondly, when dealing with the question of the accused's intention I said to you that that is not to be viewed objectively, it is his intention that matters and I said to you that the Crown contends if you accept WB and MB’s evidence that the accused prevented the deceased from leaving the room, in those circumstances the Crown says the accused intended to kill the deceased.
Then on the alternative case I should have said this to you, ‘[t]hat if you were satisfied that the accused introduced the petrol to the room where the heater was or caused it to ignite by whatever means when the deceased was in the room, then similarly the Crown contends the accused intended to kill the deceased’.”

Shortly after this, his Honour directed to the jury as to the Crown’s circumstantial case as follows:

“Now, that is not the way the Crown puts its case. I have discussed this with counsel this morning and [the applicant’s counsel] accepts that if you do not find the accused guilty on the Crown’s principal case, which is that the accused prevented the deceased from leaving the room and it was that which killed her, then when you come to consider the case based on circumstantial evidence you do not need to find each of the matters itemised as the circumstantial evidence beyond reasonable doubt. However, having considered all of the circumstances, you would have to be satisfied beyond reasonable doubt that the accused introduced the petrol or ignited it to find him guilty.
So I will just say that again for you. You do not need to find each piece of circumstantial evidence beyond reasonable doubt, but if, when you have considered all of them, you would have to be satisfied beyond reasonable doubt that the accused introduced the petrol or ignited it to find him guilty.”

Contrary to the submission of the Crown, I do not accept that individual jurors would have understood the reference to “you” in the above directions to be a reference to the jury as a whole, as opposed to individual jurors. In my view, it was more likely that the jury understood the above directions to be subordinate to the more general directions given earlier in the summing up such as those relating to onus and standard of proof and, more importantly in this context, unanimity. As I have set out, the jury was clearly told in that earlier direction that the path to the ultimate decision as to whether the applicant was guilty or not guilty was a matter for individual jurors, so long as all jurors ultimately reached the same conclusion.
The view I have expressed above is fortified by the fact that there was no discussion at trial as to the need for the jury to be unanimous as to the Crown’s primary or alternative case. Had the issue been adverted to, a clearer direction would have been expected. The Crown’s argument seems to me to be that the directions that were given fortuitously dealt with extended unanimity. I do not accept that they did.

Was an extended unanimity direction required?

While I do not accept that an extended unanimity direction was given, nor do I accept that one was required in the circumstances of this case. I am indebted to Gleeson JA for his Honour’s discussion of the authorities with respect to the potential requirement for an extended unanimity direction.
Uncertainty as to the circumstances by which the accused brought about the death of the deceased is relatively commonplace in murder trials. The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 and Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 are well known examples. Perhaps more commonly, the Crown will often not be able to prove which of multiple alleged offenders inflicted the fatal blows, or in the case of a single offender, which of multiple blows caused death. Such uncertainties are not necessarily an impediment to proof of guilt.
As to when an “extended unanimity direction” will be required, in R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, (a decision discussed in greater detail by Gleeson JA), Phillips and Buchanan JJ (at [57]) identified two types of case. The first is where “alternative legal bases of guilt are proposed by the Crown but depend substantially on the same facts” and the second “where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict”. As their Honours pointed out, in the first type of case, a unanimity direction is not generally required, while in the second type of case, a unanimity direction may be required.
At a more fundamental level, the second type of case can be conceptualised as being concerned with uncertainty. It is, in that sense, a species of the problem that arises from a failure to adequately particularise the conduct relied upon to found the offence, such as occurred in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 and Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77. This view of the issue is reflected in the observations of the Victorian Court of Appeal in Magnus v R (2013) 41 VR 612; [2013] VSCA 163 at [46] (set out by Gleeson JA at [64]).
As to whether a unanimity direction is required in the second type of case discussed in R v Walsh, their Honours said (at [57]), “[i]n this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution’s case on the defence and what other live issue is at the conclusion of the evidence’” (citations omitted). To similar effect, as Doyle J said in Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130 (at [261]), whether the prosecution case involves acts that are sufficiently “separate or different in nature” so as to require an extended unanimity direction, may involve questions of fact and degree, making the distinction difficult to draw.
In the present case, the Crown case was that the applicant deliberately caused the deceased’s death in the fire that erupted in the bedroom in which she was sleeping in the family home. The applicant’s case was that the fire was the result of an accident, that he did nothing to prevent the deceased’s escape and in fact tried to assist her.
The circumstances here were unlike the type of case dealt with by the High Court in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28. There, the deceased, on two occasions, each following an interaction with the accused, fell onto the roadway. Either fall may have caused his death. The two interactions between the accused and the deceased were sufficiently separated that different issues arose as to proof, including with respect to causation and the availability of potential defences. Had the deceased’s two falls to the ground been the result of the acts of the accused acting with one continuous purpose, there would have been no need for any unanimity direction. The case would have been one, like many others, where multiple blows or injuries were occasioned.
Lane, as is apparent from the discussion above, was not unlike the deception cases discussed in the authorities, where the cause of an element, that is the giving of the benefit (or cause of the loss), may have been one deception or another. By contrast in the present case, there was no issue of potential multiple causes for the element of death. The deceased died as a result of thermal injury caused by the fire. The Crown case was that the applicant intentionally caused the thermal injury by either preventing the deceased’s escape from the room in order to kill her, or by starting the fire in the room where she slept intending to kill her, or both. (I include in the concept of starting the fire, that he either did so directly by lighting the fire, or indirectly by deliberately placing petrol in the room in such a way that it would be ignited by the heater.) As the case was run, on either alternative the applicant acted with the same purpose. In my view, it was unnecessary for the jury to be unanimous as to which or what combination of these possibilities applied.
I am strengthened in the view I have expressed by the absence of any complaint by the applicant’s counsel at trial with respect to the directions. That, to my mind, is a reflection of the fact that no fairness was perceived by counsel. This is understandable. The case was murder or nothing. There was no question of different mental states or different defences applying as between the two Crown alternatives. To return to what was said in R v Walsh, the nature of the prosecution’s case, the defence response to that case and the consequent live issues in the trial were not such that an extended unanimity direction was required.
Like Gleeson JA, I would extend the time in which to appeal, grant leave to appeal, and dismiss the appeal.

**********

Decision last updated: 06 September 2024

Medium Neutral Citation:	AKB v R [2024] NSWCCA 169
Hearing dates:	22 September 2023
Date of orders:	6 September 2024
Decision date:	06 September 2024
Before:	Gleeson JA at [1] Walton J at [113] Dhanji J at [114]
Decision:	(1) Grant leave to appeal, including an extension of time. (2) Appeal dismissed.
Catchwords:	CRIME – appeals – appeal against conviction –murder – death by thermal injury – where Crown relied on alternative acts causing death – extent to which jury unanimity required – where standard unanimity direction given – where direction given with respect to alternative intentional acts causing death – whether failure to direct jury as to requirement of unanimity as to specific act causing death
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(e) Crimes Act 1900 (NSW), s 18 Criminal Appeal Act 1912 (NSW), s 5(1)(a) Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	Chapman v The Queen [2013] NSWCCA 91; (2013) 232 A Crim R 500 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30 Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84 Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 290 A Crim R 570 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Lane v R [2017] NSWCCA 46 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Magnus v R (2013) 41 VR 612; [2013] VSCA 163 Pratten v R [2014] NSWCCA 117 Question of Law Reserved No 1 of 2022 [2023] SASCA 109 Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130 R v AKB (No 8) [2018] NSWSC 1628 R v Boreman [2000] 1 All ER 307 R v Brown (1984) 79 Cr App R 115 R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562 R v Klamo (2008) 18 VR 64; [2008] VSCA 75 R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177 R v Mead [2002] 1 NZLR 594 R v More (1988) 86 Cr App R 234 R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179
Category:	Principal judgment
Parties:	AKB (Applicant) Crown (Respondent)
Representation:	Counsel: T F Woods (Applicant) E Balodis (Respondent) Solicitors: Just Defence Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2016/311049
Publication restriction:	By order made in the Supreme Court of New South Wales on 2 July 2018, publication of the name of the applicant is prohibited pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds contained in s 8(1)(e). By order made in the Supreme Court of New South Wales on 12 July 2018, publication of the name of the deceased is prohibited pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds contained in s 8(1)(e). Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication or broadcast of the names of the child witnesses (referred to in this judgment as “WB” and “MB”), including referral to any information, picture, or other material that identifies either person or is likely to lead to the identification of either person, is prohibited.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: R v AKB (No 8) [2018] NSWSC 1628 Date of Decision: 2 November 2018 Before: Davies J File Number(s): 2016/311049