Cavanagh v R; McIvor v R; O’Keefe v R

[2023] NSWCCA 164

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164

Hearing dates:

2 November 2022

Date of orders:

30 June 2023

Decision date:

30 June 2023

Before:

Rothman J at [1];
Fagan J at [215];
R A Hulme AJ at [298]

Decision:

A.   In the application by Barry Paul Cavanagh (2019/113050):

(1)   Time to file the application for leave to appeal is extended to 30 September 2022;

(2)   Leave to appeal is granted;

(3)   Appeal is allowed;

(4)   The conviction for murder is quashed;

(5) Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Barry Paul Cavanagh, is remitted to the District Court for re-trial on the charge of manslaughter;

(6)   The matter is listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge.

B.   In the application by Nathan McIvor (2019/74438):

(1)   Leave to appeal is granted;

(2)   Appeal is allowed;

(3)   The conviction for murder is quashed;

(4) Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Nathan McIvor, is remitted to the District Court for re-trial on the charge of manslaughter;

(5)   The matter is listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge.

C.   In the application by Sean David O’Keefe (2019/111830):

(1)   Leave to appeal is granted;

(2)   Appeal is allowed;

(3)   The conviction for murder is quashed;

(4) Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Sean David O’Keefe, is remitted to the District Court for re-trial on the charge of manslaughter;

(5)   The matter is listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge.

Catchwords:

CRIME – appeals against conviction – death arising from assault by three accused – unreasonable verdict – murder – extended joint criminal enterprise – reasonable doubt on analysis of evidence of mental element – reasonable doubt that participants agreed to inflict grievous bodily harm – reasonable doubt that each participant contemplated that one of them might intend to inflict grievous bodily harm – conviction quashed – remitted for trial for manslaughter (by majority) – appropriateness of substituting verdict discussed;

CRIME – appeals against conviction – directions on admissions – failure to direct adequately on evidence of consciousness of guilt – evidence not used in a manner requiring directions sought – grounds dismissed – use of evidence against deceased to prove tendency to act irrationally and violently when drug affected – open to judge to question whether tendency proved against deceased

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 6(1), 6(2), 7(2), 8

Criminal Procedure Act 1986 (NSW), s 128

Evidence Act 1995 (NSW), s 165

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Choudhary v The Queen [2013] VSCA 325

Christian v The Queen [2012] NSWCCA 34; (2012) 223 A Crim R 340

Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Fantakis v R [2023] NSWCCA 3

Gall v R; Gall v R [2015] NSWCCA 69

Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8

Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

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

McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37

Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75

Otto v Tasmania [2021] TASCCA 15

Payne v The Queen [2015] VSCA 291

R v BCQ [2013] QC 388; (2013) 240 A Crim R 153

R v Bryce (No 2) [2014] NSWSC 498

R v Ciantar; DPP v Ciantar (2006) 16 VR 26; 167A Crim R 504; [2006] VSCA 263

R v Cook [2004] NSWCCA 52

R v Heyde (1990) 20 NSWLR 234

R v Miah [2003] EWCA Crim 3713

R v O’Keefe [2021] NSWSC 6

R v Oth [2022] QCA 53

R v WBS [2022] QCA 180

Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43

The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55

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

Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category:

Principal judgment

Parties:

Barry Paul Cavanagh (Applicant)
Nathan McIvor (Applicant)
Sean David O’Keefe (Applicant)
Crown (Respondent)

Representation:

Counsel:
W Terracini SC (Applicant Cavanagh)
S Odgers SC / S Pararajasingham (Applicant McIvor)
D McMahon (Applicant O’Keefe)
E Balodis (Crown)

Solicitors:
Voros Lawyers (Applicant Cavanagh)
McGowan Lawyers (Applicant McIvor)
The Defenders (Applicant O’Keefe)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2019/113050; 2019/74438; 2019/111830

Publication restriction:

Pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), the identity of SG and Witness A or any material identifying them shall not be published.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Criminal

Citation:

[2021] NSWSC 746

Date of Decision:

25 June 2021

Before:

Davies J

File Number(s):

2019/113050; 2019/74438; 2019/111830

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 October 2018 the body of Jamie Phillips was discovered in Rosemeadow, New South Wales. The deceased died from a stab wound to the chest and had inflicted on him a number of blunt force injuries to the head and neck. The applicants, Barry Paul Cavanagh (Cavanagh), Nathan McIvor (McIvor) and Sean David O’Keefe (O’Keefe), were each found guilty by a jury of the murder of the deceased following a trial in the Supreme Court of New South Wales.

The evidence was that the deceased was killed during an altercation at the home of SG. SG, a known drug dealer, gave evidence against all three applicants. She received a discount on her sentence for the charge of being an accessory after the fact to the deceased’s murder in exchange for her testimony.

The deceased was affected by methylamphetamine. SG heard a fight between the applicants and the deceased. O’Keefe gave evidence in which he admitted to stabbing the deceased, but stated that it was an act of self-defence which took place in the absence of Cavanagh and McIvor.

The Crown case was that the applicants were guilty on the basis of joint criminal enterprise and/or extended joint criminal enterprise, in that each of them either agreed to cause grievous bodily harm to the deceased, or agreed to assault him and contemplated that one of them might intentionally cause him grievous bodily harm, and in furtherance of the enterprise they participated in an assault that led to his death.

Each of the three applicants sought to appeal his conviction on the basis that the verdict was unreasonable and unsupported by the evidence. McIvor and O’Keefe brought additional grounds of appeal relating to the directions given to the jury by the trial judge, and in the case of McIvor only, the severity of his sentence.

Unreasonable Verdict

The common issue to all three applicants’ appeals was the contention that the guilty verdict on the murder charge was unreasonable.

The Court held (Rothman J, and R A Hulme AJ agreeing):

1. There was a reasonable doubt as to the existence of an agreed intention to inflict, or contemplation that another of the applicants may intend to inflict, grievous bodily harm, and the Crown has not, beyond reasonable doubt, proved a joint criminal enterprise or an extended joint criminal enterprise amongst the applicants to murder: [200] – [201] (Rothman J); [406] (R A Hulme AJ).

McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55, cited.

2. (Fagan J dissenting) As the Crown case was conducted and as it was left to the jury, the only basis upon which any of the applicants could have been criminally responsible for the stabbing was if there was proved a joint enterprise between all of them. The evidence was not sufficient for the jury reasonably to have concluded to the criminal standard that the three applicants reached an understanding, prior to or at the time of the deceased being attacked, that they would assault him, to any level of severity, or that all three participated in an assault, or that they did so in furtherance of any such agreement, or that all of them either agreed or contemplated that grievous bodily harm would or might be occasioned intentionally, or that they agreed or contemplated that an unlawful and dangerous act sufficient for manslaughter would or might be carried out.

Additional Grounds – McIvor

The additional issues arising from McIvor’s appeal against his conviction were as follows:

1. the trial judge erred in failing to give directions to the jury regarding evidence relied upon by the prosecution as an admission of murder (ground 2);

2. a miscarriage of justice resulted from the absence of directions to the jury regarding evidence relied upon by the prosecution as an admission of murder (ground 3);

3. the trial judge erred in failing to give directions to the jury regarding evidence relied upon by the prosecution to show consciousness of guilt of murder (ground 4); and

4. a miscarriage of justice resulted from the absence of directions to the jury regarding evidence relied upon by the prosecution to show a consciousness of guilt of murder (ground 5).

Grounds 2 and 3 related to a recorded conversation between McIvor and his girlfriend, Ms Robinson. In that conversation, McIvor told Ms Robinson that “[he was] goneski”. On appeal, McIvor contended that the Crown had relied on that statement as an admission of guilt of murder, and accordingly the trial judge should have given a direction to the jury about alternative explanations for that statement.

Grounds 4 and 5 related to the disposal of the body of the deceased and the destruction of the deceased’s clothing. It was accepted by McIvor at trial that he had been involved in these acts. McIvor argued on appeal that evidence relating to these acts was used to show a consciousness of guilt, and therefore, the trial judge should have given careful directions to the jury about the use of the evidence and possible alternative explanations for the conduct.

The Court held (R A Hulme AJ; Rothman and Fagan JJ agreeing):

1. As to grounds 2 and 3, the particular evidence the subject of the grounds was never put by the Crown to the jury as evidence that McIvor was guilty of murder: [338] – [340] (R A Hulme AJ); [204] (Rothman J); [215] (Fagan J).

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28; De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, approved.

2. As to grounds 4 and 5, the Crown did not use the evidence at trial in the way complained of by McIvor on appeal. It would have been confusing and unhelpful to the defence case to have the trial judge give consciousness of guilt directions to the jury in this case: [357]; [372] (R A Hulme AJ); [204] (Rothman J); [215] (Fagan J).

Gall v R; Gall v R [2015] NSWCCA 69, considered.

Additional Grounds – O’Keefe

The additional issues arising from O’Keefe’s appeal against his conviction were as follows:

1. a miscarriage of justice resulted from the absence of directions to the jury as to how the evidence of the applicant’s participation in the disposal of the body might be used (ground 2); and

2. the trial judge erred in excluding part of the proposed tendency evidence (ground 3).

Ground 2 related to evidence of O’Keefe’s role in the disposal of the body. At trial, the Crown argued that this evidence assisted to rebut any argument that O’Keefe had been acting in self-defence when the deceased was killed. O’Keefe contended that careful directions to the jury as to how they might use the evidence were required. O’Keefe said that the Crown had argued that O’Keefe was not acting in self-defence and was thereby guilty of murder, on the basis of this evidence.

Ground 3 arose from tendency evidence that was sought to be tendered by O’Keefe at trial which demonstrated that the deceased behaved violently and acted irrationally when under the influence of drugs. This was said to be relevant, given, on O’Keefe’s evidence, on the day of the incident the deceased was affected by drugs, was behaving violently and irrationally, and armed himself with a knife which he used to threaten O’Keefe. O’Keefe argued on appeal that the judge erred in excluding 2 of the 14 items of such evidence, on the basis that the identity of the deceased in the material sought to be tendered was not adequately proved.

The Court held (R A Hulme AJ; Rothman and Fagan JJ agreeing):

1. As to ground 2, the Crown did not use the evidence at trial to attempt to prove that O’Keefe was guilty of murder, but merely to rebut the suggestion of self-defence. There was no miscarriage of justice: [386] – [388] (R A Hulme AJ); [204] (Rothman J); [215] (Fagan J).

2. As to ground 3, it was open to the trial judge to question whether the person described in the excluded evidence was in fact the deceased. O’Keefe could have obtained further evidence proving that it was the deceased and did not do so, and accordingly no miscarriage of justice arose: [400] – [402] (R A Hulme AJ); [204] (Rothman J); [215] (Fagan J).

R v Bryce (No 2) [2014] NSWSC 498; R v O’Keefe [2021] NSWSC 6, cited.

Appropriate Orders

Given that in the case of each applicant, the verdict for murder was unreasonable, the Court turned its mind to the appropriate orders to issue. The matters considered by the Court were:

1. whether a conviction for manslaughter could be substituted in the place of the conviction of murder for each applicant;

2. whether the applicants should be remitted for a retrial on the charge of manslaughter; or

3. whether Cavanagh should be remitted for a retrial on the charge of murder.

The Court held (Rothman J and R A Hulme AJ agreeing; Fagan J in dissent):

1. The facts of the case as accepted by the jury would prima facie prove that the applicants were guilty of manslaughter on the basis that they participated in a joint criminal enterprise to assault the accused: [202] (Rothman J); [416] (R A Hulme AJ).

2. However, the way in which the jury had to approach the assault during the trial did not require it to analyse the assault in the same way as it would have, had the jury been considering a charge of manslaughter. The Court should not substitute a verdict of manslaughter for murder unless satisfied that the jury must have been satisfied of and decided all necessary elements of manslaughter. Accordingly, each applicant should be remitted for a new trial on a charge on manslaughter: [212] – [213] (Rothman J); [416] (R A Hulme AJ).

Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43, applied.

3. It would be against the principle of double-jeopardy to re-try Cavanagh for the murder of the deceased on the basis that he alone was the perpetrator of the crime. The Crown should not have the opportunity to prosecute again for the same crime that it has failed to prove in a trial already completed: [209] (Rothman J); [417] (R A Hulme AJ).

The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55, cited.

4. (Fagan J dissenting) Verdicts of acquittal should be directed in respect of McIvor and O’Keefe because the jury’s implicit finding of a joint enterprise was unreasonable and unsupported by the evidence and the trial record did not disclose any other basis upon which those two applicants could be tried for either murder or manslaughter. In respect of Cavanagh there should be an order for a new trial on a charge of murder, on the basis of unilateral criminal liability and not joint enterprise, because there was sufficient evidence to sustain a finding beyond reasonable doubt that Cavanagh inflicted the fatal stab wound.

The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 applied.

JUDGMENT

1. ROTHMAN J: Before the Court is an appeal by each of three alleged co-offenders, Barry Paul Cavanagh (Cavanagh), Nathan McIvor (McIvor) and Sean David O’Keefe (O’Keefe). Each of them was convicted after a joint trial before a jury.

2. One of the applicants, Nathan McIvor, seeks leave to appeal his conviction and sentence on the following grounds:

Conviction

Ground 1: The verdict was unreasonable.

Ground 2: The trial judge erred in failing to give directions to the jury regarding evidence relied upon by the prosecution as an admission of murder.

Ground 3: A miscarriage of justice resulted from the absence of directions to the jury regarding evidence relied upon by the prosecution as an admission of murder.

Ground 4: The trial judge erred in failing to give directions to the jury regarding evidence relied upon by the prosecution to show consciousness of guilt of murder.

Ground 5: A miscarriage of justice resulted from the absence of directions to the jury regarding evidence relied upon by the prosecution to show a consciousness of guilt of murder.

Sentence

Ground 6: It was not reasonably open to find that the objective seriousness of the murder was just below the mid-range.

Ground 7: The sentencing judge erred in holding that the offending was aggravated by being carried out in company.

Ground 8: The sentencing judge erred in failing to hold that childhood disadvantage was a mitigating factor; NOT PRESSED.

Ground 9: A legitimate grievance arises from disparity of sentence.

3. The grounds of appeal upon which the co-offender, Applicant O’Keefe, seeks leave to appeal relate only to conviction and are as follows:

Ground 1: The verdict was unreasonable.

Ground 2: A miscarriage of justice resulted from the absence of directions to the jury as to how the evidence of the applicant’s participation in the disposal of the body might be used.

Ground 3: The trial judge erred in excluding part of the proposed tendency evidence.

4. Applicant Cavanagh seeks leave to appeal only the conviction on the following ground:

Ground 1: The verdict is unreasonable and cannot be supported by the evidence.

5. These reasons deal with the appeal ground that the verdict in each case was unreasonable. On the other grounds raised, I have had the advantage of reading in draft the reasons for judgment of R A Hulme AJ and, for those reasons would dismiss all those other grounds. On the unreasonable verdict ground, I reiterate that the evidence in each case is different but, in the view I take, not so that a different outcome should result.

Procedural and Factual Summary

6. On 16 February 2021, the applicants were convicted by a jury of the murder of Jamie Phillips (a male). The trial, which occurred in January and February 2021, was presided over by Davies J.

7. On 25 June 2021, Davies J sentenced the applicants in a manner which is best represented by the following table:

Offender	Sentence	NPP	Commencement	Expiry
McIvor	20 years	15 years	7 March 2019	NPP: 6 March 2034 Balance: 6 March 2039
O’Keefe	21 years	15 years 9 months	10 October 2019	NPP: 9 July 2035 Balance: 9 October 2040
Cavanagh	21 years	15 years 9 months	11 April 2020	NPP: 10 January 2036 Balance: 10 April 2041

8. The maximum sentence for murder is life imprisonment and the standard non-parole period (in relation to a victim over the age of 18) is 20 years’ imprisonment. It was not suggested during the course of the sentencing proceedings that the circumstances of the offending warranted the maximum sentence.

9. It was the Crown case that on 25 October 2018 at the home of SG in Ambarvale the deceased, Jamie Phillips, received a single stab wound that caused his death. The stab wound was inflicted by one of the three applicants.

10. The following summary (a more complete summary of the evidence will be included and subject to comment later in these reasons) can be summarised from the remarks of the sentencing judge.

8. During the course of 24 October 2018, the applicants were with each other. They picked up SG (who was a well-known drug dealer in the area) and drove her back to her home. Only Cavanagh was known to SG at the time, and she did not know either of the other applicants.

9. The deceased arrived at the house of SG at some time during the afternoon of 24 October 2018. The deceased consumed methylamphetamine, to which he was addicted at the time. The methylamphetamine was consumed during the afternoon and evening. He was described by witnesses as being visibly affected by drugs.

10. There was no evidence to suggest that the applicants knew the deceased prior to 24 October 2018. In the early hours of the morning of 25 October 2018, the applicants and the deceased had a fight in a bedroom of SG’s house (hereinafter “Bedroom 3”). SG banged on the door of Bedroom 3 and attempted to enter the room, but the door was locked. SG testified that either O’Keefe or McIvor called out, “It’s alright [SG]; it’s just us boys sorting out our shit”. SG told them to sort it out elsewhere and went into the backyard.

11. SG was then invited back into the house by McIvor. She went into her bedroom and was then prevented from leaving. At one stage when she was escorted between her bedroom and the bathroom by O’Keefe, she looked through the door of Bedroom 3, which was slightly ajar, and saw the sole of the deceased’s shoe facing upwards on the floor.

12. While she was locked in her bedroom, the deceased was either dead or dying on the floor in the other room. The deceased’s body was taken from the house and put in McIvor’s car. McIvor and O’Keefe then drove the deceased’s body around. O’Keefe removed the deceased’s clothes and, eventually, the body of the deceased was left at the side of a house in Rosemeadow. McIvor and his girlfriend later burnt the deceased’s clothes.

13. The injuries to the deceased as summarised by the sentencing judge, were the stab wound; injuries to his arms and legs; and a series of blunt force injuries which resulted in: nasal bone fractures; abrasions; bruises; lacerations to the scalp and face; bruising of the neck muscle; and, fracture of the left superior horn of the thyroid cartilage in his neck.

14. The Crown case relied upon joint criminal enterprise and/or extended joint criminal enterprise to establish the guilt of all three applicants. The Crown did not seek to establish which of the applicants actually stabbed the victim. The Crown proposed two alternate bases for the joint criminal enterprise:

1. That there was a joint criminal enterprise to inflict grievous bodily harm on the deceased by giving him “a sustained beating” (or “a really good flogging”); or,

2. There was a joint criminal enterprise to assault the deceased, where each contemplated that another participant in the enterprise might assault the deceased in some way in furtherance of the enterprise with an intention to inflict grievous bodily harm.

18. As stated, and as is not uncommon in a joint trial, the evidence against each of the accused at trial was different. Notwithstanding the difference in evidence against each accused, the applicants did not dispute the following facts:

1. A fight occurred on the night of 25 October 2018 at the home of SG;

2. All three applicants were present at the home at the time of the fight.

3. McIvor was involved in removing the body from the house; removing the deceased’s clothes and later burning them; and leaving the naked body where it was later found.

19. Only O’Keefe gave evidence. He testified to the effect that he was the person who stabbed the deceased; he claimed that he stabbed the deceased before either McIvor or Cavanagh became involved; and he claimed that he was acting in self-defence.

20. SG gave evidence to the effect that: she was in the bathroom at the time of the incident; overheard voices of the three applicants coming from the bedroom next to the bathroom; heard sounds of movement within Bedroom 3, which is adjacent to the bathroom; saw McIvor enter her bedroom with a knife in hand and a bit of bleeding on the knuckles; saw McIvor with the knife one other time; and, saw drops of blood on Cavanagh’s shoe.

21. McIvor’s girlfriend, Ms Amanda Robinson, testified that: McIvor told her that, “him and his mates got into a fight and that someone died from that fight”; and that one of his friends was fighting with the deceased so they got involved (being three people in total). Further, McIvor told her that he had sought to perform CPR on the deceased, but it was too late and that “he’d been shivved [stabbed]”.

22. Mr McIvor told Ms Robinson that he was scared about what would happen if he did not get rid of the deceased’s clothes and that he was “goneski”.

23. Otherwise, the evidence revealed that McIvor and O’Keefe were involved in driving the body of the deceased away from the home of SG and that McIvor, together with his girlfriend Ms Robinson, later burned the deceased’s clothes. There was DNA on a fingernail clipping and from a swab taken from the deceased’s finger and on the deceased’s right foot that was consistent with the DNA of McIvor. The foregoing brief summary of evidence is sufficient to enable a detailed summary of the evidence to be understood and, in particular, where the pieces of evidence fit in the trial that proceeded.

Detailed Summary of Evidence at Trial

Evidence of SG

24. As can be seen from the foregoing short summary and overview, the evidence of the witness, SG, was important. The trial judge provided a warning under s 165 of the Evidence Act 1995 (NSW) prior to SG giving evidence.

25. The warning was a truncated version of that found in the Bench Book and related only to the circumstance that SG was criminally concerned with the offence. SG was charged and convicted of hindering the investigation into the murder of the deceased in that she had destroyed a memory card from the CCTV cameras which recorded those present in the premises at the time of the incident. A more complete direction was provided during the summing up.

26. The evidence of SG was admitted against each of the applicants.

27. SG confirmed that she received a 25% discount on her sentence for the plea of guilty and a discount for future assistance, being that she was to agree to give evidence against the co-accused.

28. SG gave evidence that on 24 October 2018 the deceased arrived at her home in the afternoon, looking “very strung out”. He was delusional, talking to himself and paranoid. There were no injuries on the deceased when he arrived.

29. Another person on the premises, Ms Lisa Morgan, also expressed concern about the deceased.

30. The delusional behaviour continued throughout the time that the deceased was at the home of SG. Between 9:30 PM and 10 PM, SG decided to go to the club. The deceased informed her that he was going to another house nearby owned by a person by the name of Kath.

31. Before she left for the club, SG gave the deceased $100 as he wanted to buy some cannabis. SG went to the club with Belinda, a friend. SG also testified that a person by the name of Errol attended her house during the course of the afternoon. So did a person by the name of Ben.

32. SG asked her brother to watch over her home and repeated the invitation to the deceased to join her and her friend at the club. SG stayed at the club for over an hour. She telephoned the deceased from the club, but the call went to the deceased’s voicemail. From the club, SG walked to McDonald’s at Campbelltown from which she rang Cavanagh.

33. SG had been provided Cavanagh’s phone number in relation to the supply of prohibited drugs in which SG was involved. Cavanagh answered the phone and offered to give SG a lift home.

34. Cavanagh picked her up in a little blue car, which was being driven by McIvor with O’Keefe in the rear passenger seat. SG entered the car and sat next to O’Keefe. They drove to SG’s home. Mr Daniel Zammit, who had been previously contacted and/or sought to be contacted by SG, was in the front yard of the home when they arrived.

35. SG told Mr Zammit that she had been uncomfortable in the car with three strangers. After asking Mr Zammit for a cigarette, which he did not have, McIvor drove SG to a 7-Eleven store to get cigarettes. She and McIvor spent about half an hour at the 7-Eleven store, during which time Cavanagh, O’Keefe and Mr Zammit were at her home.

36. SG and McIvor took some food back to the home and when SG arrived Mr Zammit told her that the others were sitting in the shed. At that stage, SG wanted the group to leave so she asked Mr Zammit to close the shed, turn the power off and ask the others, being the three applicants, to leave. At that stage, the three applicants were described by SG as “loud and laughing and then whispering sometimes”. This made her feel uneasy and strange.

37. At that point, SG went to the bathroom, which was located next to Bedroom 3 (as so described). While in the bathroom, SG could hear noises, which sounded like banging or like furniture or something being moved. SG heard a number of comments which she could make out and which she could recall. The comments made were saying things such as: “Wanna play games, just be fucking quiet”; “shut the fuck up, bro” and other like comments. SG called out: “what’s going on in there?” and she tried to open the door to Bedroom 3, but it was locked.

38. One of either McIvor or O’Keefe, in her opinion, said to her in reply to her question: “It’s alright [SG], it’s just us boys sorting out our shit”, to which she replied: “well, go and sort it out somewhere else”. She then said: “Open the door, open the door!” and they said, “We’ll be out in a minute”.

39. SG then went outside and lit a cigarette.

40. At the time that SG had left for the club, she was unaware of where Mr Zammit was and thought that, when these events were happening, McIvor, Cavanagh and O’Keefe, together with Mr Zammit were in that room.

41. She went outside, had a few puffs of the cigarette and then McIvor came to the backyard, down the back steps and yelled out: “[SG], where are you? What are you doing?”

42. SG said, “I’m here, I’m not doing anything, I’m having a cigarette”. McIvor said: “Come inside, come back inside; everything’s all right; come back inside.”

43. SG went back into the house and when she was returning, O’Keefe was in the laundry part of the house. SG walked past and went into her bedroom. SG sat on her bed for a couple of minutes before McIvor walked in. Her testimony then was in the following terms:

“[McIvor] had a knife in his hand, O’Keefe was there too, he had a knife in his hand, and, I noticed he had a little bit of bleeding on the knuckle on the right-hand side.”

44. McIvor took SG’s phone off her and asked her if the CCTV footage was being recorded, because the hard drive to the CCTV was in SG’s bedroom. SG replied in the negative and asked whether they were going to hurt her to which the response was to “just be quiet and you won’t be hurt”.

45. SG asked to go to the bathroom and was permitted so to do, but was followed by O’Keefe. While SG was in the bathroom, she heard what she described as a sound like the bedroom door opening and closing and heard further words spoken. Those words were: “Just shut the fuck up. Shut up; fucking shhh, be quiet”. This, SG believed, came from Cavanagh and McIvor. SG then heard O’Keefe say “yeah, I’m here” and heard one of Cavanagh or McIvor say, “where the fuck are you, Sean [O’Keefe]?” To which O’Keefe replied: “I’m standing here doing what the brother asked me to do”.

46. SG opened the door of the bathroom. When she exited the bathroom the door to Bedroom 3 was open slightly and, as she walked past, she saw the bottom of a shoe “like the top bit of an orange bit of a shoe facing, like the sole of it facing up. [SG] couldn’t see no body part, just a bit of a shoe.” SG did not inform any of McIvor, Cavanagh or O’Keefe what she had seen. She was “absolutely scared”.

47. SG then heard the bookcase being moved and, she understood, being put against the door to her bedroom. SG then heard voices. SG heard O’Keefe crying and heard Cavanagh say “Get your shit together, bro. Get your shit together.”

48. SG then heard someone get slapped and heard Cavanagh say, “should we take her out too?” O’Keefe replied, “no, she’s right, she’s right, she doesn’t know anything. Don’t hurt her, she doesn’t know anything”. SG then did not hear anything for some time. She thought she was in the bedroom for about 1½ hours before she heard the bookcase being moved again and someone, later in her evidence identified as Cavanagh, then opened her door.

49. Cavanagh was at the end of the hallway and SG went towards that location. Cavanagh asked, “Are you all right, [SG]?” To which SG replied “yeah, I’m alright.” Cavanagh then said, “Sorry about us boys making that noise and stuff”.

50. SG was trying to keep her composure and noticed that Cavanagh had a few drops of blood on his shoe. Cavanagh asked SG to run the shoes under water to wash the blood off and he stood at the bathroom door while that was happening. SG ran the shoes under water, without actually washing them, then handed them back to Cavanagh.

51. On the evidence of SG, after the incident relating to the shoes, Cavanagh then went to the loungeroom and made a phone call and left. After that SG did not see Cavanagh again and, at the time that Cavanagh left, no one else was in the house.

52. The examination-in-chief then clarified a number of matters relating to earlier evidence. SG clarified that when Cavanagh opened the door, she did not see either McIvor or O’Keefe. She also clarified that the shoe that she had seen pointing up was a shoe that she had seen on the deceased.

53. SG was also asked to clarify the noises she heard from the bathroom that she had described as being like moving furniture. Her evidence was that she would hear a thump now and again and movement within the room. This went on for a few minutes, while she was on the toilet.

54. SG also clarified that the voice she heard say “shut the fuck up” sounded like Cavanagh and it was McIvor who said: “you want to play games”; while it sounded like O’Keefe who said: “be quiet”. At no stage did she hear the voice of Mr Zammit, nor did she see him at any stage after she went into the bathroom. On questioning, SG also clarified that the blood that she had seen on McIvor’s hand looked like the kind of blood that occurs when you skin your knuckle.

55. While SG testified that she did not again see Cavanagh, she did have contact with O’Keefe, who visited her twice after 25 October 2018. The first time, approximately one week later, O’Keefe told SG that he was not going to hurt her and he cried and said: “what happened shouldn’t have happened and shit got out of hand.” He also informed SG that he was not otherwise prepared to talk about the events.

56. O’Keefe returned a couple of days after the first occasion, and he again indicated he was not prepared to talk about the events on 25 October. Again, O’Keefe started crying and then hugged SG. Thereafter, O’Keefe visited SG every second day or so and they formed a friendship.

57. Otherwise, in her evidence-in-chief, SG described the knife that she saw, or its length, and identified a plan to her house. As would be expected, SG was cross-examined at length.

58. She was cross-examined extensively by Counsel for O’Keefe with significant emphasis on credibility.

59. Part of the cross-examination concentrated on the omission from SG’s statement to Police of crucial events that had occurred on 25 October 2018. A number of propositions were put to SG that accused her of lying in relation to various pieces of evidence. The details of those propositions are currently irrelevant, because the evidence is the answer and the answer was a denial of any mendacity or untruthfulness. As to the omission of events in the first Police statement, SG said that she had been traumatised at the time and she was not deliberately omitting events or observations.

60. While without seeking to detract from the earlier comment — that it is the answer to questions that forms the evidence — the questions themselves may give rise to an hypothesis inconsistent with guilt. In assessing the facts, it is necessary to bear in mind any hypothesis and determine whether such an hypothesis is reasonable on the facts that are determined on the evidence that is accepted. It is for that reason that I summarise more fully than is absolutely necessary the cross-examination.

61. Apart from the incomplete statement to Police during the first interview, a number of issues were put to the witness. One of those issues related to a discrepancy between the agreed fact that SG had signed for the purpose of her sentencing proceedings and her evidence in Court, which related to whether SG was aware that it was the deceased who had been killed in Bedroom 3. SG testified that, in relation to her Agreed Facts on sentencing, she had informed a barrister that she was not 100% sure of the identity. It was later explained by his Honour that the Agreed Facts implied a possible later acquired knowledge or acceptance of the identity of the deceased.

62. During the course of cross-examination, Counsel referred to what was said to be inconsistencies in the versions that SG gave as to whom she called and from whom she had sought a lift home. For most of those propositions, SG had an explanation.

63. SG maintained that the two versions were explicable because, in relation to the first call, Windy did not answer the phone but later did, but did not come to provide a lift for her. In the absence of obtaining a lift from Windy, SG maintained that she was prepared to and was going to walk home and that she had done so in the past.

64. There were a number of incidental issues relating to phone calls. For example, questions were asked as to how and in what circumstances SG phoned Mr Zammit and/or a number for his girlfriend. Further, questions were asked relating to how it was SG had the number for Cavanagh. The phone number was placed in her phone by Mr Zammit because of the connection in relation to the purchase and sale of a pushbike. Each of these are, it seems, relevant only to credit.

65. It was put to SG that her explanations in relation to obtaining the phone number of Cavanagh was a lie, which was denied by SG. It was also put to SG that she sold drugs from her home, with which proposition SG agreed.

66. There was some questioning as to previous conduct of SG in relation to drugs transactions, which were accepted by SG. It should be noted that the trial judge had provided a s 128 Certificate in relation to the evidence of SG.

67. SG accepted that she dealt drugs after talking with the Police, and accepted that, when she was talking to the Police, she had denied dealing drugs. SG also denied making a call to Cavanagh, about which reference has already been made, after visiting the club, which she explained on the basis that she was “scared of the bloke”.

68. The deceased had, according to SG, arrived at her house at about 7 PM and she accepted that he looked like “shit” and that he had showed her needle marks on his arm. He looked withdrawn, skinny, pale, and fidgety.

69. The deceased was also speaking strangely and said strange things directed at no one in particular, for example that a person had better start listening and leaving the woman alone. These conversations occurred before SG realised that the deceased had taken drugs, but she shortly became aware that he had.

70. SG was aware that the deceased had injected ice, and she observed him on the edge of the bed with a syringe and a spoon on the ironing board next to it and SG could see that the spoon had liquid in it. SG was referred to an SMS in which she had described the deceased as “wigging HEAPS HARDER”. SG did not recall the SMS but defined “wigging out” as “acting weird” or “acting strange”. She denied that it meant someone was really high on drugs, but accepted that it had something to do with being affected by drugs of some kind.

44. When SG arrived home in the car with the three applicants, she saw Mr Zammit outside and walked up to him to make sure that he was all right. She saw O’Keefe walking up the street.

45. Then SG and McIvor left for the 7-Eleven, about which evidence was given in SG’s examination-in-chief. When she went to the 7-Eleven with McIvor, SG left Cavanagh and O’Keefe at her home.

46. At the time, according to SG, the deceased was not at her place, and she did not introduce him to O’Keefe. Nor was she listening to music and relaxing with the three applicants and/or the deceased.

47. Questions were put to SG on the basis that she had asked O’Keefe to keep an eye on the deceased, because she was concerned for the deceased as a consequence of him behaving strangely. SG denied that proposition.

48. SG was taken, once more, to the first interview in which much of the material in the immediately preceding paragraph had been omitted. SG responded that she was “very distraught” and that she was “very confused, overwhelmed, emotional, withdrawn”.

49. SG had earlier stated that at the time she was scared of Cavanagh. She reiterated that concern and also testified that she did not know what had happened in the room or whether it involved the deceased.

50. SG was then reminded that, at or about the four-hour mark of the interview, she told one of the Police officers that she had “skipped a major part by accident”, which referred to the incident that she heard from the bathroom and thereafter. It was put to her on the basis that the incident that had been omitted was “the part where Jamie Phillips was killed” and “where you heard them talking about killing you”, and “where the bookshelf was pushed up against the door”. It was put to her that she also missed the part where she saw “a body or a person lying face down”.

51. SG testified that she did not skip anything and, in response to a question seemingly aimed at skipping those events or putting them out of time, SG responded that she “was traumatised” and “wasn’t even thinking straight”. It was then suggested to her that those events did not occur and that she was “making up a story to paint herself as a victim”.

52. SG reiterated the evidence relating to the threat to her; that she was locked in her room; that a bookcase was pushed against her bedroom door; that she was followed into the bathroom; that her phone had been taken; that O’Keefe spoke to her about keeping quiet. It was put to her and she denied that the story was made up in order that SG would not, herself, be in trouble and that, thereafter, SG maintained a false story. Those latter propositions were also denied.

53. In the course of putting to SG that she was unaware of how the altercation commenced, Counsel put to SG that she was unaware of “what, if anything, was said before you heard this thumping”. SG responded that she was “in the bathroom” and that she “could hear it from the bedroom”.

54. It was suggested to SG that, when she saw O’Keefe at the bathroom door he had a bloodied nose, which SG denied.

55. In cross-examination, it was suggested that a statement SG made to Police that when she returned to her house, she noticed that things had been turned over and the place smelt of bleach, was untrue. She accepted that those comments were made to the Police and testified that they were true. She also testified that there was a wet patch on the carpet and that such testimony was not false.

56. SG was then cross-examined about the activity of burning that she undertook, which she testified was a continuation of the clean-up that had been proceeding all week. SG was also cross-examined about the destruction of the memory card for which she was charged and sentenced.

57. SG testified that the card was removed because of the drug issues that would be disclosed. SG also testified that the footage in the CCTV did not show inside the premises, but only around the premises and the CCTV showed, on the testimony of SG, only the front door.

58. There was cross-examination in relation to the destruction of the memory card. SG stated that there were two memory cards, one of which she had destroyed, being the memory card that showed the front door and came from the lounge room where it was recorded, the other memory card coming from the bedroom.

59. SG was asked about the discount to her sentence on the basis of her offer of assistance in the trial of the three applicants. SG was provided, over and above the reduction for the plea of guilty, a discount of 10% for undertaking to give evidence and a further 15% for future assistance, being the giving of the evidence.

60. SG testified that she was not aware of the full amount and the breakup of the discounts. She also accepted that were she not to give evidence in accordance with the statements she had provided, there was a possibility that her sentence would be increased.

61. SG was also cross-examined by counsel for McIvor. SG confirmed that she met McIvor for the first time on the night of these events. SG was again asked about the omission from her Police statement, when she described the events relating to the deceased or to the fight. This had previously been described as the most important aspect of the events. The question referred to the timing of mentioning the knife and her need to return to that timing when she was describing the events in question.

62. It was suggested to SG that McIvor did not enter her bedroom with a knife and threaten her in any way, either directly or indirectly, with a knife. SG denied the suggestion and confirmed that McIvor had a knife in his hand.

63. SG was shown a photograph of the knife which SG described as being similar to the knife that she had seen and may have been the same knife. Questions were then asked in relation to a drawing that was provided to Police of the knife, being a sketch by SG. SG also denied that she could have been mistaken in identifying the voices that she heard from the bathroom, in particular whether it was the voice of McIvor.

64. Counsel for Cavanagh then cross-examined on the period during which SG had known Cavanagh and the testimony was that it had been for about a week before these events occurred. SG testified that Cavanagh’s voice was distinctive and he sounded like a New Zealander.

65. There was examination as to the times that SG had been before the court on criminal charges, which SG testified was about three. There was also examination about a dispute between the deceased and his brother as to violence perpetrated by the brother on his girlfriend and an accusation that the deceased had a relationship with the girlfriend or was desirous of such a relationship. The dispute with the brother was an argument and SG did not notice any injuries on the deceased when he arrived at her house.

66. SG denied being in love with O’Keefe, but accepted that she was in an intimate relationship with O’Keefe. SG was aware that the deceased had received “half a ball” of ice and was asked for the price of half a ball — which she said was $350. The deceased was using drugs with Ms Morgan who had attended the premises that day and had assisted in adjusting one of the cameras to the CCTV.

67. Questions were asked in relation to the events in the bathroom.

68. Many of the propositions put to SG were repetitive of, or reiterating propositions put in earlier cross-examination by Counsel for Cavanagh or by other Counsel. In re-examination, SG reiterated that she was scared at the time of the first interview and that she was frightened that she could be hurt or killed. SG reiterated that she did not know the co-accused McIvor or O’Keefe prior to the events in question. The cross-examination did not otherwise inform any reasonable hypotheses and was essentially concerned with credit.

Evidence of Witness A

96. I next deal with the evidence of Witness A. Witness A was an informer who gave evidence of conversations Witness A had with Cavanagh and O’Keefe. Witness A’s evidence was adduced only against the applicants Cavanagh and O’Keefe and was not evidence against McIvor. While little turns on it, there was no ruling that limited the conversations between Witness A and Cavanagh to evidence against Cavanagh or conversations between Witness A and O’Keefe to evidence against O’Keefe. Nevertheless, I will treat the evidence in that way for the purposes of the determination of whether there is a reasonable doubt arising from the evidence. I hasten to add that there was no application by Counsel for that further restriction.

97. Witness A knew Mr Zammit, who was a person mentioned in the conversations with Cavanagh. Apparently, Cavanagh informed Witness A that Mr Zammit had “given up” Cavanagh for murder.

98. Witness A was close to Cavanagh and was involved in a number of conversations with him. They sometimes played cards together and he knew Cavanagh “fairly well”. Witness A had a conversation with Cavanagh about Cavanagh’s concern that he would be charged with murder. It was in this conversation that Mr Zammit was mentioned.

99. Cavanagh informed Witness A that Mr Zammit “gave them up for the murder”. When details were sought of the terms of the conversation, Witness A detailed that “Daniel Zammit gave [Cavanagh] up for murder or something”, which was said to Witness A by Cavanagh. At the time, Witness A was unaware that Cavanagh had been charged with murder.

100. Witness A was informed, during the conversations with Cavanagh, that “somebody was stabbed” and that “they bleached the body or something”. Witness A informed the Court that Cavanagh informed him that he (Cavanagh) was involved, but did so in code words. There were a number of conversations in which these matters were raised, which occurred over a couple of weeks.

101. On questioning, Witness A gave more detail, including that the murder occurred in a house at Ambarvale or Rosemeadow; and that Cavanagh was there with a few friends, being the other two applicants and a female, the name of whom could not be recalled by Witness A.

102. On being asked whether Cavanagh told Witness A what happened, Witness A said:

“There was an altercation, that they were sort of wigging out or something and it was sort of a drug deal or something gone wrong, something to do with drugs.”

103. Further, Cavanagh told Witness A that the fight was with the deceased. Cavanagh informed Witness A that the deceased “was stabbed under the like rib, armpit sort of area”, but did not say who stabbed the deceased. The evidence of Witness A, was that Cavanagh had told him:

“That there was a fight broke out, and he had a knife, and that somebody was stabbed, it was just once, and it freaked him out because he could hear the person take like a deep breath and then collapse.”

104. On further questioning, Witness A explained that the person with the knife in his hand, on the statement given to him by Cavanagh, was Cavanagh.

105. Witness A also remembers Cavanagh telling him that “someone went for a drive or something, a body was cleaned up a bit or something, with bleach or something, and the removal of the clothing”.

106. In the course of the conversation with Cavanagh, Cavanagh mentioned to Witness A the involvement of O’Keefe, who was known to Witness A. At a later time, Witness A met with O’Keefe and spoke with him about these events.

107. The initial conversation with O’Keefe was concerned with the charges that had been laid against him in relation to the murder. O’Keefe had told him that he and Cavanagh and a couple of other people were charged with the murder of the deceased. This occurred in about 2020 and he expressed the view that he thought he would “beat” the charge, and if he were not to beat it that he, O’Keefe, “was going to be the one that put his hands up for doing it”. Witness A made clear that O’Keefe, by utilising the words “beat it” meant that he was going to be found not guilty of murder.

108. The admission that O’Keefe was to make, if he were not to “beat it”, was based upon the proposition that O’Keefe perceived that he was “responsible” for the events because he invited the people there before the altercation. One of the conversations which Witness A recalled was a conversation in which Witness A said that Cavanagh had stabbed the deceased to which O’Keefe responded:

“How do you know? Like no-one’s meant to know about that.”

“If anyone was to ask, it was O’Keefe who was meant to be the person that stabbed the deceased.”

109. Another version was given when asked of the detail and that version was not substantially different from the foregoing but was in the following terms, after Witness A referred to Cavanagh being the person that stabbed the deceased, the second version was:

“How do you know about that? No-one should know it happened. If anyone was to ever ask, it was to be [O’Keefe] that done it because [he] was going to be taking responsibility for the situation”.

110. Witness A did not suggest that Cavanagh said words that expressly admitted to having stabbed the deceased. Rather, Witness A inferred the fact from other statements made by Cavanagh.

111. In examination-in-chief, Witness A dealt with the discount in sentencing that occurred as a result of the assistance provided by the giving of evidence in these proceedings.

112. Leave was granted to refresh the witness’ memory and Witness A was shown his statement of 29 August 2019. After refreshing his memory, Witness A testified that Cavanagh had told him that he would never forget the look of the deceased taking his last breath and that it was he, Cavanagh, who actually used the knife.

113. Having refreshed his memory, he also recalled a conversation with Cavanagh as to how the altercation commenced. Cavanagh had told him that O’Keefe was in the lounge room and Cavanagh heard noises, like a fight so Cavanagh and McIvor ran to the lounge room to get involved in the fight. Witness A also recalled that Cavanagh had asked him to make contact with a person and for the two of them to look for a knife in relation to the murder. And, if it were found, get rid of it.

114. Witness A was then taken to a second statement of 9 March 2020, which Witness A said reminded him of the conversation with O’Keefe about O’Keefe admitting to the killing. In the course of the further refreshed evidence, Witness A said that O’Keefe had told him he “was pressured” and that he was going to raise self-defence, and that if he put his hand up for manslaughter he, O’Keefe, would get “looked after”.

115. At the beginning of the conversation with O’Keefe, O’Keefe told Witness A that he had, in fact, stabbed the deceased but, by the end of the conversation, O’Keefe had made clear that it was not O’Keefe who stabbed the deceased, which confirmed the information provided to Witness A by Cavanagh.

116. Before dealing with the cross-examination of Witness A, it is necessary to reiterate that the evidence of Witness A was adduced against Cavanagh and O’Keefe and not against McIvor. The trial transcript does not disclose any other restriction on the evidence of Witness A. Ultimately, Witness A was the subject of a warning to the jury, but there was no ruling given and no ruling sought that the conversations with Cavanagh could not be used against O’Keefe or that the conversations with O’Keefe could not be used against Cavanagh.

117. As one would expect, the cross-examination of Witness A dealt at length with an attempt at discrediting his evidence and reasons why Witness A ought not to be believed. First, the suggestion was made that when Witness A was told he would be looked after, it was intended that he inform on other inmates. Witness A denied that suggestion.

118. Witness A was then asked about the offences for which Witness A was charged and sentenced, which included charges of dishonesty, being stealing, receiving stolen property, attempted break and enter, and a number of aggravated break and enter offences. Witness A accepted that he had stolen thousands of dollars’ worth of property for which he was facing sentence when he spoke to Police.

119. The circumstances of how the statements were made were the subject of questioning, including the absence in the second statement of 9 March 2020 of any reference to O’Keefe suggesting that it was O’Keefe’s fault that the murder occurred. In cross-examination Witness A confirmed the evidence earlier given that O’Keefe had told him that the co-accused were taking drugs from the deceased and that O’Keefe was hoping to beat the charge by claiming it was self-defence, and that he would be “looked after” by his co-accused if he were found guilty of manslaughter or murder. Witness A denied having lied to Police about those matters for the purpose of reducing the sentence to be imposed on Witness A or otherwise.

120. The evidence of Witness A was to the effect that he had been registered as a Police informer, but he testified that this was the first time he had provided information to Police. Witness A demonstrated the manner in which Cavanagh had demonstrated to him, Witness A, how the deceased was stabbed.

121. It was described in Court as moving “his right hand from a lower position to a higher position across the front of his body”. Witness A said, in describing the motion, “he held one arm straight across in front of his body as if holding someone in front of them, then he took his other hand in a fist, as if holding something, and moved the hand from down beside his body in a forward and inwards out in front of him”. The full description by his Honour (with an accepted addition by the Crown) for the Court was, when Witness A demonstrated the action, “the witness moved his right hand from a lower position to a higher position across the front of his body … whilst holding his left hand out parallel to his shoulder”.

122. Witness A testified that Cavanagh told or intimated to him that the deceased was fighting with O’Keefe before the deceased was stabbed. Witness A was not told, or does not think he was told, how many people were in the room, nor what the fight was about. Further, neither Cavanagh nor O’Keefe told Witness A whether the deceased had a weapon or knife himself. Further again, Witness A testified that Cavanagh had told him that he, Cavanagh, had joined in the fight to assist O’Keefe.

123. In re-examination, Witness A reiterated the truth of the conversation given in a statement by Cavanagh namely:

“I [Cavanagh] put it in, and I will never forget the look of someone taking their last breath”.

Evidence of Ms Amanda Robinson

124. The evidence of Ms Robinson was admitted only against the applicant, McIvor. She was in a relationship with McIvor as at the date of the events at Ambarvale.

125. On 25 October 2018, the day of the stabbing, McIvor visited Ms Robinson. Ms Robinson got out of her car and saw McIvor in his mother’s car and went over to talk to him. Ms Robinson testified that McIvor looked “worried”. McIvor told her:

“Him and his mates got into a fight and that someone died from that fight”.

126. Ms Robinson described McIvor as scared. In answer to a question as to what, if anything, McIvor had said about what had happened, Ms Robinson said:

“He just told me that a fight broke out between him, his mates and - well, he said a Samoan guy at the time. So one of his mates was fighting with Jamie at the time and then another friend jumped in and had a fight with him. Jamie got on top of that friend, so then [McIvor] jumped in and had a fight with him. That’s when supposedly Jamie dropped to the ground. [McIvor] then said that he done CPR and that’s when one of his mates said that it was too late, he’s been shivved”.

127. Ms Robinson clarified that the name of the deceased was not mentioned in the conversation and the deceased was described as a Samoan guy, but Ms Robinson learnt, at a later time, that it was the deceased.

128. Ms Robinson then described McIvor’s desire to abide by instructions given to him to get rid of the body and her role in that conduct. During the course of cross-examination, Ms Robinson assented, by a nod, to the proposition that it was a friend of McIvor’s who stabbed the deceased. Later, Ms Robinson found out who the co-offenders were and approached McIvor about those persons and mentioned to him O’Keefe and Cavanagh. On that approach, McIvor neither denied it nor did he agree with it.

127. Ms Robinson and McIvor loaded black plastic bags, like football bags, into a drum, and then burnt the goods. The drum was a fire drum, an old 44-gallon drum, which they used to put the material in, add petrol to it and set it alight.

128. Ms Robinson explained that she took part in this activity because she was scared for herself and was scared also for McIvor. Her concern was based upon the fact that McIvor was, seemingly, scared of the other two and what would happen if he did not “get rid of the stuff”. McIvor told her that, at the house, he was told that if he did not get rid of the stuff, it could cause his family to be in danger.

129. Ms Robinson gave evidence as to wounds on the hands of McIvor. Those wounds were fresh but were not bleeding at the time that she saw them. They were on both hands and in the palms.

130. Ms Robinson was charged and sentenced for accessory after the fact; received a 25% discount for pleading guilty at the earliest opportunity; and a further 25% for assistance, 10% for past assistance and 15% for her undertaking to give evidence in open Court in the present proceedings.

131. Evidence was given by a Police officer of the statements made by Ms Robinson to Police which were in or to the same effect as the evidence during the trial. The evidence was given by Detective Morton by reference to his statement of 28 March 2019. In cross-examination Detective Morton confirmed that Ms Robinson used the plural “mates”, not the singular “mate” when referring to McIvor telling her of the fight with the deceased.

132. As one would expect, there was significant other material, but none of the additional material is in the nature of observations of the night and events that occurred or comments by any one of the applicants, other than the evidence of O’Keefe, who gave evidence in the trial.

133. I do not by the foregoing suggest that the other material is unimportant. But, as a consequence of the importance of the evidence of SG and the statements made by one or more of the applicants, the evidence in relation to those aspects has been recited more completely than might otherwise be the case.

134. As may be obvious from the foregoing recitation of evidence from Ms Robinson, McIvor was involved in driving the body away from the home of SG; dumping the body; and, later, burning the deceased’s clothes. The reasons for his engagement in that conduct, if they were accepted, were provided to Ms Robinson and have been recited above. I have not repeated that McIvor also said to Ms Robinson that he was “goneski”, which it seems everyone took to mean that he would be charged and convicted.

135. There was also DNA evidence in relation to each of the applicants, but the DNA evidence does not point unequivocally to a version that supports the Crown case. The DNA evidence is consistent with the Crown case and, in that sense, supports it, but it is also consistent with the absence of a joint criminal enterprise and the absence of an intention to cause grievous bodily harm.

136. Essentially, such evidence supports the proposition that a fight occurred at the home of SG on 25 October, but that fact is uncontroversial and was accepted during the course of the proceedings. The mere presence of blood or other body products that would give rise to the presence of DNA does not, in and of itself, support the Crown theory of the case.

137. The evidence of the injury sustained by the deceased (other than the knife wound) have already been provided in general terms in these reasons. It is appropriate to reiterate them at this point and to concentrate on the injuries other than the stab wound.

138. The deceased had inflicted upon him nasal bone fractures, a fracture of the left superior horn of the thyroid cartilage; abrasions; bruises; lacerations to the scalp and face; bruising of the neck muscle; and injuries to his arms and legs. There is no evidence of defensive wounds suffered by any one of the applicants.

139. The injuries suffered by the deceased (leaving aside, again, the stab wound) are consistent with blunt force injury. As stated in all expert reports on the nature of blunt force injuries, they can occur from the infliction of punches or kicks or the like, or from forceful contact of that part of the body with a stationary or immovable surface.

140. Injuries to the face can be caused, for example, by falling face first down a stairwell, which would cause a series of blunt force injuries. Nevertheless, the injuries are consistent with that which is essentially uncontroversial, namely, that there was a fight between the deceased and one or more of the applicants.

141. Evidence was also adduced, being tendency evidence, relating to the deceased. The tendency evidence was adduced for the purpose of proving that the deceased had a tendency to act irrationally and violently, including with a knife, when he was affected by drugs. There was independent evidence that the deceased was affected by drugs. However, the tendency evidence proves a tendency; it does not prove that the deceased acted irrationally or violently on the day that these events occurred.

142. The evidence was that the deceased was observably affected by drugs, but apart from statements by the applicants themselves, there is no evidence that the deceased was acting violently at or about the time of these events.

143. Other than the foregoing, there was evidence of the post-killing conduct to which reference has already been made, but to which further attention will be paid in these reasons as to the manner in which such evidence can be used and, in this case, should be used.

144. While the evidence in relation to the other applicants is slightly different, it is in or to the same effect as that which has been outlined above. Ms Robinson’s evidence also concerned Cavanagh and O’Keefe. O’Keefe gave evidence himself in the trial.

Evidence of O’Keefe

147. It is probably appropriate, even though the jury rejected it, to deal with O’Keefe’s evidence more fully. O’Keefe’s evidence was that he was friends with each of Cavanagh and McIvor.

148. He confirmed that the three of them picked up SG and drove her home, but denied making arrangements to meet her and testified that he had not met her before. When they arrived at the home of SG, the deceased, according to O’Keefe, was at the front of the house and he met him there. Mr Zammit was not, according to O’Keefe, at the house that night.

149. O’Keefe gave evidence of the use of drugs by the deceased and that the deceased, after taking the drugs, started speaking to people who were not present and commenced acting in an intimidating fashion to absent people.

150. At one stage, for example, the deceased, according to O’Keefe, suggested he was related to the Queen of England. When SG left the house with McIvor, according to O’Keefe, SG asked O’Keefe and Cavanagh to watch the deceased.

151. The deceased, according to O’Keefe, was waving a knife around but not threatening O’Keefe or anyone. Rather, it was part of the aspect of intimidating people who were not present.

152. O’Keefe told the deceased to come out of SG’s bedroom and the deceased told O’Keefe that he, the deceased, was talking to SG. O’Keefe told the deceased that SG was not present and O’Keefe felt that the deceased was “getting the shits with [him]” as he had to keep telling him not to go into the bedroom. The deceased picked up the knife and O’Keefe told him to put it down and shortly thereafter SG and McIvor returned.

153. When SG went into her bedroom, some little time later, the deceased went into the bedroom in which the altercation occurred (Bedroom 3) and was rummaging through a bag. O’Keefe asked him what he was doing and the deceased answered that it was his “fucking bag” and “I’m sick of you telling me what to do”. The volume, according to O’Keefe, was loud.

154. O’Keefe then testified that the deceased came at him with “the blade”, being a knife similar to a hunting knife, about 20 to 30 cm in length. O’Keefe said he started fighting with the deceased and grabbed the deceased’s hand. O’Keefe hit the deceased and smashed him against the cupboard, telling him to drop the knife.

155. According to O’Keefe, at some stage, he slipped and was lying on the ground, on his back with the deceased on top of him, at which time O’Keefe stabbed the deceased. Initially, he thought he had stabbed him in the stomach, but he was later informed it was higher and he testified that he did not intend to stab the deceased in the heart. He testified that the other two applicants were not in the room when all of this happened.

156. However, within seconds, McIvor entered the room and pulled the deceased off him. The deceased dropped the knife and he and McIvor were fighting while O’Keefe, in shock, remained on the ground. Cavanagh came in and the deceased fell to the ground. There was then an attempt to give mouth-to-mouth resuscitation and/or CPR.

157. O’Keefe denied following SG into the bathroom or threatening SG. He also denied taking her telephone. According to O’Keefe, SG assisted in carrying the deceased to the car. O’Keefe testified that Cavanagh wanted to take the deceased to the hospital, as did McIvor, each of whom were still trying to revive him.

158. O’Keefe was taken to a number of recordings and was asked about the evidence of Witness A, which has been extracted above. Essentially, O’Keefe sought to explain all of the comments and made it clear that he was aware that the house in question was the subject of surveillance devices.

159. In cross-examination on behalf of Cavanagh, O’Keefe made it clear that Cavanagh was not involved in the fight and that Cavanagh was at the premises only in order to obtain drugs. Further, in relation to McIvor, the witness clarified during cross-examination by Counsel for McIvor that McIvor was not initially involved in the fight but became involved after O’Keefe had stabbed the deceased and pulled him off O’Keefe. When he did that, the deceased got to his feet and the deceased and McIvor were fighting. As earlier stated, the deceased dropped the knife, which, also as earlier stated, was a different knife to that which O’Keefe said was used to stab the deceased.

160. The cross-examination of O’Keefe by the Crown commenced with the statement of 14 November 2018 which O’Keefe accepted was false. O’Keefe testified that if he had not lied to Police he would not have been able to walk out of the Police Station. O’Keefe was taken to five versions of what had happened leading up to the death of the deceased and causing it. In the first and second version he said he did not do anything; in the third version someone else was accused of stabbing the deceased and O’Keefe was not involved; in the fourth version Mr Zammit stabbed the deceased; and in the fifth version, O’Keefe was not on the premises. He was then taken to a sixth version in which O’Keefe said it was an accident and no-one’s fault; and the last version was that which he gave in evidence in these proceedings, being that it was self-defence.

161. Notwithstanding the rigorous cross-examination of SG and Ms Robinson, each of them read believably, even taking into account the warnings that were given by the trial judge and need to be taken into account in assessing their evidence. Obviously, the jury believed them. Just as obviously, the jury did not believe O’Keefe.

162. Nevertheless, the mere fact that the jury did not believe O’Keefe, with which assessment I agree on the reading of the transcript, does not establish the negative of that to which O’Keefe testified. It is the function of the Crown to negate self-defence. In essence, the only evidence of self-defence is that to which O’Keefe testified or about which he spoke in previous conversations, in circumstances where, in relation to the previous conversations, it is fairly clear that they were false.

163. As can be seen from the concentration on the evidence above, the most important evidence, in my view, is that of SG and Ms Robinson. Most homicide trials, for obvious reasons, depend upon circumstantial evidence and the drawing of inferences. In that respect circumstantial evidence takes a number of forms. Scientific and DNA evidence is an aspect of circumstantial evidence, as is medical evidence (if not otherwise included in the earlier comments). Usually, medical evidence will only take the Crown case so far.

164. In this case, two of the aspects that require particular comment are the tendency evidence adduced in relation to the deceased and the post-offence conduct of the applicants.

165. The tendency evidence adduced in relation to the deceased renders more probable conduct of a particular kind, but does not establish that it occurred. On the other hand, such evidence may establish a reasonable hypothesis consistent with self-defence. However, there is direct evidence from which inferences can be drawn to the required standard contrary to that aspect.

166. The evidence of SG, which is accepted and was accepted by the jury, deals with that which could be heard from the bathroom from the room next door, being Bedroom 3. SG, as indicated above, testifies to the voices that were heard and identifies each of the applicants as participating in the conversation. SG did not hear Mr Zammit (a proposition put to her). Nor did she hear the deceased.

167. I accept that the deceased was talking and that he was affected by drugs. But, on the testimony of SG, he was not shouting or aggressive.

168. If he were to have been aggressive or shouting, SG would have heard him from the bathroom or, if it were earlier, from her bedroom. She did not.

169. As a consequence, there is direct evidence that during the altercation (about the existence of which there is no contest), the deceased was neither shouting nor screaming; nor, it seems, acting aggressively. Thus, the direct evidence is inconsistent with the existence of conduct of the kind that the tendency evidence establishes.

170. Much of the post-offence conduct is unhelpful, in the sense that it may be consistent with an explanation other than murder or manslaughter.

171. In the course of submissions, Counsel for one or more of the applicants relied upon the judgment of Otto v Tasmania. ^[1] I generally agree with the comments of the Court of Criminal Appeal in Tasmania at [46] of the foregoing judgment, but I consider, for present purposes, the question framed by the Tasmanian Court of Criminal appeal is too narrow. The Court said:

“[46]   For an acquittal on the basis that there is an inference consistent with innocence reasonably open on the evidence, it does not mean that a jury has to infer that an event, the subject of a suggested hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event: R v McIntyre [2000] NSWCCA 6, 111 A Crim R 211 at [31]; Kaliyanda v The Queen [2007] NSWCCA 300 at [63]-[66], Davies v The Queen [2019] VSCA 66 at [499]. The question for this Court, framed to accommodate a circumstantial case, is whether it was open for the jury to have excluded all reasonable hypotheses consistent with innocence.”

1. Otto v Tasmania [2021] TASCCA 15 at [46].

172. With great respect, when dealing with a ground of appeal that alleges an unreasonable verdict, the Court cannot answer the question by determining whether “it was open for the jury to have excluded all reasonable hypotheses”, but must determine, for itself, whether a reasonable hypothesis remains open that is inconsistent with guilt for these charges (including manslaughter). I do not suggest that the statement in Otto is necessarily incorrect, because it may in the foregoing relate to the advantage enjoyed by the jury.

173. I turn then to the principles associated with the drawing of inferences. I adhere to the view I expressed in Fantakis v R. ^[2] The drawing of an inference is a matter of common sense and an inference can be drawn if human experience would be contradicted if it were not.

     2. Fantakis v R [2023] NSWCCA 3 at [813]-[815] and the references therein.

174. In a criminal trial, not every fact must be proved beyond reasonable doubt. Each of the elements must be so proved, but where a court is considering circumstantial material, those circumstances, each of which may not be proved beyond reasonable doubt, may be combined for the purpose of establishing an element or essential fact to the requisite standard.

175. Nevertheless, for an inference to be reasonable, it must arise from something more than conjecture. The mere possibility of innocence does not prevent a jury, or on appeal a court looking at an unreasonable verdict, from finding a person charged to be guilty of an offence if the inference of guilt is the only inference open on a reasonable view of the evidence as a whole. ^[3]

     3. The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

176. In relation to the circumstantial evidence in these proceedings, the post-offence conduct is part of that circumstantial case. The most telling aspect of that conduct is the proposition, identified as being put by Cavanagh, as to how the three applicants would deal with SG. Further, in Bedroom 3, while it is clear that the deceased was talking and his comments elicited the commands from Cavanagh and/or McIvor asking him to keep quiet, the statements from the deceased were not heard by SG.

177. Afterwards, SG heard Cavanagh say, “Should we take her out too?”, which was plainly a reference to SG and plainly a reference to the proposition as to whether she should be killed. There are two aspects to that which require comment.

178. First, the use of the term “too” is an admission by Cavanagh, in the presence of McIvor and O’Keefe, that “taking out” SG would be an additional “taking out”. Secondly, the proposition that the three of them should commit what would plainly be a murder for the purpose of avoiding detection for what had occurred earlier is post-offence conduct which significantly and pointedly displays a consciousness of guilt as to the conduct in relation to the deceased.

179. For my own part, it would seem to be a consciousness of guilt relating to murder and not manslaughter, but it is necessary to be careful that the “common sense” approach to the seriousness of what is suggested as post-offence conduct is not informed by an understanding of the relative seriousness of manslaughter and murder that would be known to a judge but not necessarily the persons involved in the conduct.

180. Nevertheless, it would defy common sense for the three applicants to be discussing the killing of SG in circumstances where there had been no homicide committed or, if a homicide did occur, it was in the context of self-defence.

181. In dealing with consciousness of guilt, it is appropriate to bear in mind the comments of the Victorian Court of Appeal in R v Ciantar; DPP v Ciantar ^[4] where the Court also said:

“[74]    It is necessary too to bear in mind the directions which a trial judge must give concerning evidence of post-offence conduct which is relied on as establishing consciousness of guilt of the offence charged.

[75]    To begin with, the term ‘the offence charged’ was described in Woolley as an obvious and usually convenient way of relating the post offence conduct to the material wrongdoing as opposed to some other wrongdoing. As was said, it would be fanciful to make a jury’s resort to evidence of consciousness of guilt of a particular offence depend upon whether the accused had a consciousness of guilt of the particular offence as opposed to unlawful conduct in which the accused has engaged. Consequently, juries may be directed in terms of whether evidence of lies or other post-offence conduct demonstrates a consciousness of guilt ‘of the offence charged’. But it will often be helpful for a judge to add an explanation to the jury that reference to ‘the offence charged’ is a convenient way of saying that the accused had a consciousness of the alleged wrongful conduct which constituted the offence charged rather than a consciousness of a specific crime as it is known to the law. (Footnotes omitted.)

374. The Crown had put to Mr O’Keefe in cross-examination that he disposed of the body because he “knew that this wasn’t done in self-defence” but he denied it. ^[63] Aside from expressing regret for having done so Mr O’Keefe did not provide an alternative explanation.

     63. T979.22 (AB 1467)

375. The proposed ground of appeal concerns the following part of the submission by the Crown Prosecutor set out above (at [344]):

Similarly for Mr O’Keefe, his role in the dumping of the body is relied upon by the Crown to rebut the suggestion that there was any self-defence here.

377. Senior counsel who appeared for Mr O’Keefe at trial did not advance an alternative explanation for his client’s involvement in the disposal of the body. ^[64] He argued that in respect of various lies he had told that there may have been panic and shock as well as a fear of being disbelieved if the police had been contacted and told that the deceased had been killed as an act of self-defence. ^[65]

     64. CCA T25.22 – 25.35

     65. T1199 (AB 1687)

378. The relevant part of the trial judge’s review of the prosecutor’s submissions set out above (at [348]) is:

The Crown also said he relied on Mr O’Keefe’s role in dumping the body, including removing Mr Phillips’ clothes before doing so, to rebut the suggestion that there was any self-defence involved.

379. In relation to the defence case on post-offence conduct (albeit lies), his Honour reminded the jury: ^[66]

Mr Pontello then dealt with the lies that Mr O’Keefe told. He said, Mr O’Keefe, admitted to telling those lies. He said Mr O’Keefe didn’t think the police would believe him if he said he acted in self-defence. He was anxious to avoid being locked up. He panicked.

66. SU 88 (AB1781)

380. Given defence counsel had made no submission expressly referable to disposal of the body it is unsurprising the trial judge said nothing about the defence case on the subject.

Submissions

381. Referring to submissions made on behalf of Mr McIvor, it was submitted by counsel for Mr O’Keefe that careful directions to the jury as to how they might use the evidence were required. An alternative explanation for Mr O’Keefe’s conduct in disposing of the body was that he was guilty of manslaughter on the basis of excessive self-defence. Another was that he was worried about how the circumstances might be portrayed, or about the disclosure of other offending (namely, drugs) if he did not do so. It was submitted that a direction as to alternative explanations for the conduct other than as evidence that Mr O’Keefe was not acting in self-defence and thereby guilty of murder was required in the circumstances. ^[67]

     67. Mr O’Keefe AWS [38]

382. It was accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules applied. It was submitted that there was a miscarriage of justice warranting the grant of leave because Mr O’Keefe had lost a real chance of acquittal fairly open in relation to the charge of murder. That was so particularly for three reasons:

1. The same type of submissions were made in respect of each accused, thereby receiving some collective emphasis.

2. There was no clear explanation as to how the Crown argued that the evidence rebutted self-defence.

3. The Crown’s submissions had a tendency to emphasise the callous nature of the acts, seemingly with an element of sarcasm, such as “extraordinary human thing to do” and “extraordinary human actions”. ^[68]

   68. Mr O’Keefe AWS [39]

383. The Crown submitted that a consciousness of guilt direction was not required. It had contended at trial that the evidence negatived the claim of self-defence, contrary to submissions by Mr O’Keefe in this Court. The circumstances were similar to those in Gall v R; Gall v R.

Consideration

384. It was implicitly contended in the submissions for Mr O’Keefe that the Crown had argued that the evidence was a basis for an inference that “he was not acting in self-defence and [was] thereby guilty of murder”. However, that is not what the Crown Prosecutor said. As he said in the sentence quoted above (at [376]), the evidence was simply “relied upon by the Crown to rebut the suggestion that there was any self-defence here”.

385. The judge reminded the jury of senior counsel’s reference to Mr O’Keefe panicking and possibly not thinking he would be believed if he reported to police that the deceased had been killed in an act of self-defence. ^[69] If the jury accepted that, it may be that it would have been taken into account as well in respect of the conduct in disposing of the body.

     69. SU 788 (AB 1781)

386. Senior counsel for Mr O’Keefe is a very experienced and astute practitioner in criminal law and it is of considerable significance that he did not see the need to make any submission specifically directed to the subject of his client’s disposal of the body of the deceased. This suggests that his portrayal of Mr O’Keefe’s state of mind after the death of the deceased was thought to be sufficient and that no further submission, nor request of the trial judge for direction was necessary in the atmosphere of the trial.

387. The reasoning provided above for refusing to allow Mr McIvor to rely upon his Grounds 4 and 5 applies in respect of this ground for Mr O’Keefe. There was no miscarriage of justice. Mr O’Keefe did not lose a chance of acquittal that was fairly open.

388. Leave to allow Ground 2 should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 3 (O’Keefe) – The trial judge erred in excluding part of the proposed tendency evidence.

389. Before the trial began the trial judge heard and determined an objection by the Crown to tendency evidence being adduced in Mr O’Keefe’s case. According to a Tendency Notice, ^[70] the tendency sought to be established was of the deceased:

(a) To behave violently including with the use of a knife and when under the influence of drugs;

(b) To act irrationally, including when under the influence of drugs.

70. AB 362

390. There were 14 items of evidence the substance of which was said to establish these tendencies.

391. The tendency was said to be relevant to a number of facts in issue, namely whether on 25 October 2018 the deceased: ^[71]

     71. AB 365

1. was affected by drugs;

2. behaved irrationally;

3. behaved violently;

4. armed himself with a knife; and

5. threatened the accused, including with a knife.

392. The judge upheld the Crown’s objection to the admissibility of 2 of the 14 items of evidence. They were items (v) and (vi):

(v) About 2am on Wednesday 24 October 2018 at an address known to police at Campbelltown, the deceased went into the kitchen of the premises, obtained possession of a knife, pointed it at Sonny Anderson and said, inter alia, “You’re dead. You’re dead. Do you know who I am? I am related to The Queen.” The name of the person who saw, heard or otherwise perceived that conduct is Nicholas Smith.

(vi) At the same time, date and place the deceased obtained possession of a broomstick and swung it five times at the head of Nicholas Smith , saying, inter alia, “My brother said I should kill you”. The name of the person who saw, heard or otherwise perceived that conduct was Nicholas Smith.

393. The judge provided reasons for upholding the objection in R v O’Keefe [2021] NSWSC 6:

[34] The evidence contained in paragraphs (v) and (vi) is in a different category. It seems to me that there is no evidence to justify the identification of the person Mr Smith describes in his statement as the deceased, nor does the evidence demonstrate that the matters described by Mr Smith took place on the occasion described by Sonny Anderson and Jammie Lawrence in their statements contained in the police notebook. Mr Smith’s description of what occurred is completely different from what Mr Anderson and Ms Lawrence describe. The events described by Mr Smith were said to have occurred on the night of 23 October 2018 (two days before the deceased died) whereas the incident described by Ms Lawrence was said by her to have occurred about two weeks before the deceased was killed.

[35] Mr Anderson refers to Mr Smith requiring the deceased to leave his (Mr Anderson’s) unit because Mr Smith did not realise the deceased was staying with him. However, Mr Smith’s evidence was that Mr Anderson and Ms Lawrence lived in unit 10, and he found the man in unit 9.

[36] I note further that the final paragraph of Mr Smith’s statement reads:

23. I do not know Jamie Phillips and I have never met the bloke. I do not know of Jamie Phillips’ family or friends.

That matter is not cured by the inadmissible hearsay in paragraph 22 of Mr Smith’s statement, that one or other of Mr Anderson or Ms Lawrence said that the man who stayed in unit 9 was the deceased. Neither Mr Anderson nor Ms Lawrence gives evidence that they were present at the time the man concerned was in unit 9 to identify that man as the deceased.

[37] This evidence, taken at its highest, does not establish that the man to whom Mr Smith refers is the deceased.

Submissions

394. Counsel for Mr O’Keefe submitted that there was significance to the proposed tendency evidence in items (v) and (vi) because of the close temporal proximity to the charged incident and also because it could demonstrate that the deceased was seriously drug affected the day prior, was using a knife, acting violently and irrationally and was potentially in some kind of delusional or psychotic state consistent with the expert evidence adduced in the defence case. ^[72]

     72. Mr O’Keefe AWS [43]

395. It was accepted that the difference in the accounts of Mr Smith on the one hand and Mr Anderson and Ms Lawrence on the other “might well be … because they were referring to different incidents”. ^[73]

     73. Mr O’Keefe AWS [45]

396. Ms Lawrence spoke of a man who had introduced himself as “Jamie”. When she subsequently saw on the news that Jamie Phillips had been killed, she realised it was the same person. Mr Smith said in his statement that he was told by either Mr Anderson or Ms Laurence that the man he encountered was Jamie Phillips after they had seen the news of a male person being murdered in Rosemeadow. Counsel for Mr O’Keefe submitted that on the assumption that Ms Lawrence was available, Mr Smith could have given evidence about what he was told about the identity of the man pursuant to s 66 of the Evidence Act 1995 (NSW) (the maker available exception to the hearsay rule). ^[74]

     74. Mr O’Keefe AWS [46]

397. It was submitted, uncontroversially, the assessment of significant probative value for the purposes of s 97(1)(b) of the Evidence Act involves the evidence being taken at its highest without any consideration of credibility or reliability. It was also submitted that it was not for the judge at this point to consider whether the party seeking to adduce the evidence would ultimately be able to get it into admissible form. The evidence was “capable”, if accepted, of identifying the deceased as the person described by Mr Smith. Accordingly, the judge erred in taking into account the perceived admissibility of the evidence in determining whether it had significant probative value, or he erred by treating its status as hearsay as a matter informing its credibility or reliability. ^[75]

     75. Mr O’Keefe AWS [47]

Consideration

398. His Honour indicated earlier in his judgment (at [24]) that he was prepared to consider the admissibility of the tendency evidence on the basis of the substance of what was disclosed in the tendered material. One of the bases upon which the Crown objection was made was that items (vii)-(xiv) were only sought to be established by the tender of police facts sheets in respect of offences for which the deceased had been charged. His Honour adopted the approach taken by Beech-Jones J (as his Honour then was) in R v Bryce (No 2) [2014] NSWSC 498 at [15] who, when considering the admissibility of reports on the police computer system (COPS), assumed the accused would be able to adduce the substance of the evidence in admissible form. Accordingly, it must have been a matter of substance rather than form which led his Honour to the conclusion that the evidence of the events described in items (v) and (vi) were inadmissible.

399. There is also no indication in the judge’s reasons of him having regard to credibility or reliability. He twice referred to taking the evidence at its highest: R v O’Keefe [2021] NSWSC 6 at [24], [37].

400. The problem with the evidence was not merely one of form. It was open to the judge to consider that Mr Smith’s description of his interaction with a male person at the unit complex where Mr Smith lived was different to what Mr Anderson and Ms Lawrence described. Counsel for Mr O’Keefe in this Court accepted that. It was thereby open to the judge to consider that Mr Anderson or Ms Lawrence did not identify to Mr Smith the person he saw.

401. For these reasons there was no “wrong decision of any question of law”: s 6(1) of the Criminal Appeal Act.

402. It might also be observed that there was no miscarriage of justice by reason of the fact that the question of obtaining further evidence to clarify that which was available at the time of the pre-trial hearing was not foreclosed to Mr O’Keefe’s legal representatives by his Honour’s ruling. There was nothing to prevent steps being taken to seek clarification from any of Ms Lawrence and Messrs Anderson and Smith and re-agitating the issue of admissibility.

403. When this was raised with counsel for Mr O’Keefe in this Court, he submitted that the evidence was already admissible pursuant to s 66 if Mr Anderson or Ms Lawrence were available at the trial. ^[76] However, this was not a matter that was raised for the consideration of the trial judge.

     76. CCA T29-30, 32.5, 32.45

404. Ground 3 must be rejected.

Ground 1 (Each Applicant) The verdict is unreasonable.

405. In relation to the unreasonable verdict ground raised by each of the three applicants, I have had the advantage of reading the draft judgments of Rothman and Fagan JJ and am grateful for their respective analyses of the evidence.

406. I share with my colleagues a reasonable doubt as to the applicants’ guilt of murder on the joint criminal enterprise and extended joint criminal enterprise bases asserted by the Crown. I am of the view that verdicts of guilty of manslaughter cannot be substituted. The power to do so is provided by s 7(2) of the Criminal Appeal Act which is in the following terms:

7 Powers of court in special cases

…

(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. [Emphasis added]

407. The following observations of the plurality in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [43] are apposite:

“Where the ground for setting aside a conviction is lack of evidence, wrongful admission of evidence, misdirection or failure to direct on an issue in the trial, s 7(2) of the Criminal Appeal Act should be taken as applying only where the jury must have been satisfied as to some fact (or facts) underlying the conviction which is (or are) unaffected by the lack or wrongful admission of evidence, misdirection or non-direction, and which constitutes (or constitute) another offence independently of that of which the appellant was convicted. Only then will the Court of Criminal Appeal be able to hold that the jury “must have been satisfied of facts which proved the appellant guilty of that other offence”. It is not enough that the Court of Criminal Appeal thinks that, properly directed, the jury would or might have found the appellant guilty of the other offence, or that the appellant lost the chance of being found guilty on the lesser offence”. [Emphasis added]

408. I shall return to this but I should first explain why manslaughter on an extended joint criminal enterprise basis remains a viable basis upon which each of the applicants could have been convicted.

409. The evidence was capable of establishing each of the applicants were parties to an agreement to assault the deceased and that they each contemplated the possible infliction of harm by which the deceased would be exposed to an appreciable risk of sustaining serious bodily injury. That is in fact what occurred and resulted in death being caused.

410. The factual matters that have influenced me to this conclusion commence with acknowledgment that it was well open to the jury to conclude that SG’s evidence that each of the applicants were present in the relatively small, furnished bedroom where and when the deceased was assaulted was correct.

411. SG’s evidence included her hearing each of the applicants saying things that were consistent with their participation in some form in the attack upon the deceased, be that physical participation or urging and encouragement by presence and utterances. This included, “It’s just us boys sorting out our shit” (perhaps O’Keefe or McIvor), “Shut the fuck up” (sounded like Cavanagh), “You want to play games” (sounded like McIvor), and “Be quiet” (sounded like O’Keefe).

412. SG’s evidence also included a description of things said and done by each applicant outside of the bedroom and after the attack upon the deceased, each of which is also consistent with having been jointly involved in, rather than innocently present during, the events in the bedroom. This included Mr McIvor taking her phone from her, asking about whether the CCTV was recording, and telling her to “shut up”, and statements made by Mr Cavanagh asking, “Should we take her out too”?

413. I am mindful of the fact that both Mr McIvor and Mr O’Keefe contested the Crown case by accepting they were involved in a physical altercation with the deceased but contending their involvement was different to the way contended for by the Crown. I appreciate that the Crown’s disproof of their exculpatory explanations did not establish beyond reasonable doubt the converse. But disbelief of the exculpatory aspect does not mean their concessions of physical involvement should be disregarded entirely. There was no resiling from them in this Court. In fact, subject to the Court being satisfied that manslaughter was not an unreasonable outcome, senior counsel for Mr McIvor accepted that if the Court was satisfied the murder conviction was unreasonable, “the appropriate order would be to order a new trial for manslaughter”. ^[77]

     77. CCA T 54.46

414. There are other discreet items of evidence, such as that relating to DNA and admissions made by each applicant as to their involvement in some form of physical altercation with the deceased. I do not intend to survey the evidence exhaustively as it is comprehensively set out in the judgments of the other members of the Court.

415. The reason I cannot agree that it is open to substitute verdicts of guilty of manslaughter (Rothman J at [213]) is because the power provided by s 7(2) of the Criminal Appeal Act is not enlivened. There is no problem in relation to the first requirement, that “the jury could on the indictment have found the appellant guilty of some other offence”. However, as the plurality in Spies v The Queen noted at [43], s 7(2) also requires that:

“on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence”.

It is not enough that:

“the jury would or might have found the appellant guilty of the other offence”.

416. In the present case, the jury must have been satisfied that each applicant was guilty of murder on the basis they were participants in a joint criminal enterprise to inflict grievous bodily harm, or to assault the deceased with contemplation of possible intentional infliction of grievous bodily harm. The Court is unanimously of the view that this was unreasonable. While it may be accepted the jury were satisfied each applicant was a participant in a joint criminal enterprise to assault the deceased there was no finding as to whether the act causing death was “unlawful” and “dangerous”. It could be confidently assumed the jury would have been satisfied of those elements of manslaughter. However, the plurality in Spies v The Queen (at [47]) cautioned that the power conferred by s 7(2) “must be exercised with great caution” lest “trial by judge is substituted for trial by jury”.

Basis of a new trial

417. Fagan J has concluded that the there should be a retrial for Mr Cavanagh on a charge of murder. The Crown did not seek this and I do not believe it should be given an opportunity to pursue a case for murder it elected not to pursue in the first place.

Conclusion

418. My conclusion is that the unreasonable verdict ground (Ground 1) for each applicant should be upheld and that there should be an order pursuant to s 8(1) of the Criminal Appeal Act that there be a new trial on manslaughter.

419. The combined effect of s 128 of the Criminal Procedure Act 1986 (NSW) and the Supreme Court Practice Note SC CL 2 (pars 20-24) is that indictments for manslaughter are to be presented in the District Court unless for a particular indictment an exemption has been granted by the Chief Justice. Absent any such exemption, which is a matter for the Director of Public Prosecutions to seek if thought appropriate, there should be an order for the matter to be listed for mention in the District Court on Friday, 14 July 2023.

Orders

420. I propose that there be orders to the following effect:

1. Extend time for Mr Cavanagh to file his notice of appeal to 30 September 2022.

2. Leave to appeal granted to each applicant to appeal against conviction upon Ground 1.

3. Allow the appeal in each case and quash the convictions for murder.

4. Remit the case of each applicant for retrial on a charge of manslaughter.

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Endnotes

Decision last updated: 03 July 2023