Chamma v The King

[2025] NSWCCA 84

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chamma v R [2025] NSWCCA 84

Hearing dates:

19 May 2025

Decision date:

04 June 2025

Before:

Leeming JA and Wright J at [1];
Rigg J at [43]

Decision:

1. Grant leave to appeal, confined to grounds 1 and 2, and otherwise refuse leave.

2. Appeal allowed on the basis of ground 2, but otherwise dismissed.

3. Quash the conviction for murder and order that there be a new trial.

4. Quash the sentence imposed by the Supreme Court on 1 September 2023.

5. List the matter before the arraignments judge at 10am on 4 July 2025.

Catchwords:

CRIME – appeal against conviction – unreasonable verdict – whether open to jury to accept Crown case that applicant contemplated use of knife to cause death or really serious injury – verdict not unreasonable – breach of prosecution’s duty of disclosure – conceded materiality of breach – appeal allowed, conviction quashed and retrial ordered

Legislation Cited:

Evidence Act 1995 (NSW), s 82

Cases Cited:

Crane v R [2024] NSWCCA 112

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29

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

Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30

Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5

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

R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057

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

The King v ZT [2025] HCA 9; 99 ALJR 676

Category:

Principal judgment

Parties:

Samir Chamma (Applicant)
The King (Respondent)

Representation:

Counsel:
B Neild SC (Applicant)
M Millward, T Abdulhak (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2021/319239

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2023] NSWSC 1057

Date of Decision:

19 June 2023

Before:

McNaughton J

File Number(s):

2021/319239

HEADNOTE

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

Mr Samir Chamma, and his co-accused Mr John Hicks, were found guilty of the murder of Mr Warwick Hunter on 15 November 2020, following a trial in the Supreme Court constituted by judge and jury. There was no dispute that Mr Hunter had been fatally stabbed at his home that evening, and it was accepted in light of CCTV footage that Mr Chamma, Mr Hicks and one other person had called upon Mr Hunter for a few minutes shortly after 10pm. The Crown case was that Mr Hicks had fatally stabbed Mr Hunter, and that Mr Chamma was liable as a participant in a joint criminal enterprise to rob Mr Hunter, having contemplated as a non-fanciful possibility that Mr Hicks might use the knife with the intention of killing or causing grievous bodily harm, and that death might occur as a result.

Mr Chamma sought leave to appeal against his conviction, on the basis inter alia that the verdict was unreasonable (ground 1) and that there was a miscarriage of justice resulting from the failure by the prosecution to comply with its duty of disclosure (ground 2). The Crown conceded that, in relation to ground 2, not only had there been a failure to comply with its duty of disclosure but that it would be open to the Court to be satisfied that that breach gave rise to a miscarriage of justice, and that if the Court so concluded, Mr Chamma’s conviction should be quashed. However, Mr Chamma sought, on the basis of ground 1, an acquittal for the charge of murder, leaving manslaughter available at a retrial.

The Court held, allowing the appeal on the basis of ground 2 but otherwise dismissing the appeal:

Per Leeming JA and Wright J, Rigg J concurring:

1. The Crown’s concessions in respect of ground 2 were properly made. There had been material non-disclosure of the discount in respect of other offending given to a witness who had co-operated with the Crown and provided evidence which was the subject of a non-publication order. That witness was an important witness in the Crown case who was cross-examined before the jury, including as to the discount he had received, which defence counsel was unable to falsify because of the non-disclosure. The appeal should be allowed on this ground and Mr Chamma’s conviction for murder quashed: at [4]-[5] (per Leeming JA and Wright J) and [43] (per Rigg J).

Per Leeming JA and Wright J:

2. It was open to the jury to find Mr Chamma guilty of murder. This was because it was open to the jury to find beyond reasonable doubt that Mr Chamma knew that a knife in a sheath was being taken to the premises, and it was also open to them to be satisfied that Mr Chamma contemplated, as a non-fanciful possibility, that the knife would be used, that in a violent struggle really serious injury would be inflicted with the intention of causing grievous bodily harm or death, and that the result would be death. The robbery involved a degree of planning, the jury had evidence that Mr Hunter had been under the influence of alcohol and drugs and was erratic and aggressive, and it was open to them to conclude that this was known to Mr Chamma. The possibility that the robbery would be met by resistance was self-evidently open. Furthermore, although there was a tension between the evidence from a witness of statements made by Mr Chamma in the immediate aftermath of the event, and evidence of a recording of Mr Chamma’s statements some weeks after the event, the weight to be placed on each was a matter for the jury to consider, as was the assessment of the contested evidence of this witness: at [15]-[41].

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered and applied.

Per Rigg J (dissenting on this ground):

3. There was a reasonable doubt regarding the Crown’s proof of the requisite mental element for murder, which the jury ought also to have experienced, and thus the appeal should also be allowed on the basis of ground 1. In a case such as the present, where the prosecution case on the relevant issue was circumstantial and where Mr Chamma did not give evidence, the advantage of the jury was slight. The Court could not be satisfied that Mr Chamma subjectively contemplated that Mr Hicks would use the knife in furtherance of the joint criminal enterprise, intending to kill or cause grievous bodily harm, and kill the deceased. The three men were not emotionally motivated to confront Mr Hunter, and were opportunistically determined to rob him, but this was not a robbery that was so carefully planned as to suggest significant commitment to or investment in it. Although the evidence permitted an inference to be drawn that Mr Chamma had seen that Mr Hunter was affected to some extent by drugs and alcohol, he was a slight man who lived alone, the three men were younger and likely stronger than him, and there was no evidence that Mr Chamma had any reason to believe that he was violent. Mr Chamma’s presentation and statements shortly after Mr Hunter was killed were consistent with Mr Chamma not having contemplated that Mr Hicks would kill Mr Hunter with an intent to do so or to cause grievous bodily harm. The comment in the immediate aftermath of the killing was considerably more important than the recorded conversation weeks later: at [44]-[57].

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5, considered and applied.

JUDGMENT

1. LEEMING JA and WRIGHT J: Mr Samir Chamma stood trial with his co-accused Mr John Hicks in the Supreme Court constituted by judge and jury for the murder of Mr Warwick Hunter on 15 November 2020, at his home in Toongabbie in western Sydney. There was also an alternative count of armed robbery. Both men were found guilty of murder following a 14 day trial.

2. The applicant seeks leave to appeal against his conviction. The first ground is that the verdict is unreasonable. The second is that there was a miscarriage of justice resulting from the failure by the prosecution to comply with its duty of disclosure. The third and fourth are based on directions to the jury concerning circumstantial evidence.

3. The appeal was filed in September 2024 (more than a year after sentence was imposed: R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057) and had originally been listed for hearing on 2 December 2024. Shortly beforehand, the Crown advised that there had been a non-disclosure at trial, following which the applicant filed an amended notice of appeal and amended submissions. The Crown’s written submissions, filed on 12 May 2025, contained a concession that not only had there been a failure to comply with its duty of disclosure, but also, to quote paragraph 105 of those submissions, that:

it would be open to this Court to be satisfied that, in the circumstances of the present case, the breach of the duty of disclosure could realistically have affected the reasoning of the jury as to the verdict of guilty that was returned and thus gives rise to a miscarriage of justice. Were the Court to so conclude, it is accepted that the applicant’s conviction should be quashed and a new trial ordered.

4. Those concessions were properly made. We accept them. They are based on evidence which is the subject of a non-publication order, because it concerns the testimony of a person who has co-operated with the Crown and obtained a discount in respect of other offending. The evidence adduced in this Court establishes that there was material non-disclosure of the discount given to that witness. He was an important witness in the Crown case, who was cross-examined before the jury, including as to the discount he had received for his co-operation, which defence counsel was unable to falsify because of the non-disclosure.

5. The evidence is the subject of a non-publication order, and for that reason and in light of the retrial which is to occur, it is both unnecessary and inappropriate to say more. We note that the Crown advised, when the appeal was heard, that steps have been taken to ensure that breaches of this kind not recur. There should be a grant of leave in respect of ground 2 and the appeal allowed on this ground, with the result that the conviction must be quashed.

6. Grounds 3 and 4 are hypothetical. There is no utility in reviewing in this Court directions which were not the subject of challenge or request at trial, in respect of a trial which led to a conviction which must, in light of ground 2, be quashed. It follows that there is not a proper basis for a grant of leave extending to those grounds, and to be fair, Mr Neild SC, who appeared for the applicant in this Court but not at trial, realistically and very properly accepted as much.

7. Ground 1 would, if made out, result in an acquittal in respect of the charge of murder, while leaving manslaughter available at the retrial. The Crown relied on the doctrine of “extended joint criminal enterprise” described in Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 at [1] as:

a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.

8. In its application to the facts of this case, as will be explained below, ground 1 turns on the proposition that it was not open on the evidence for the jury to be satisfied to the criminal standard that when the applicant and Mr Hicks went to the deceased’s premises, the applicant contemplated as a non-fanciful possibility that Mr Hicks might use a knife with the intention of killing or causing grievous bodily harm, and that death might occur as a result.

9. No point was taken by the Crown as to any inconsistency between the applicant relying upon the conceded breach of the obligation of disclosure resulting in a procedurally unfair trial to set aside the guilty verdict, and simultaneously contending that because the evidence adduced at that trial was insufficient, he should obtain the benefit of an acquittal. We therefore take that point (if it is a point) no further, noting it merely so as to be clear of what was not argued before this Court.

10. In order to address the merits of ground 1, it is necessary to address the evidence adduced at trial.

11. There was no dispute that Mr Hunter was fatally stabbed that evening. He died in the presence of a neighbour on the footpath where he had run shortly after the applicant and Mr Hicks had driven away from his house. The deceased sustained stab wounds to his chest, back, shoulder and knee. Paramedics arrived shortly thereafter, but were unable to save him. The evidence of a forensic pathologist was that the wounds to the chest and back were the fatal wounds. No knife was ever recovered. Methylamphetamine and cannabinoids were detected in the deceased’s system, but the evidence was that they had not played a significant role in his death.

12. Neither the applicant nor Mr Hicks gave evidence at the trial. Despite a denial in an electronically recorded interview in which the applicant participated, it was accepted at trial (in light of CCTV footage from a neighbour’s camera) that the applicant had called upon the deceased from about 7:57 to 8:18pm on the evening with two other persons, and then with Mr Hicks and one other person, for only a few minutes, shortly after 10pm. The witness who was the subject of the second ground of appeal gave evidence that he was one of the three men who had attended earlier in the evening, but he did not attend on the second visit, when the deceased was killed. The witness said that the deceased offered them alcohol, cannabis and drugs, and that he had one or two cones of cannabis, and that the applicant declined, saying “I had my own drugs”. He gave evidence that the deceased was “a bit fried”, “acting strangely”, “erratic”, was “aggressive”, “agitated” and “restless” consistent with using ice, and was “very full-on with his explaining things and I didn’t even know the bloke so I wasn’t really listening”. He said that as they drove away there was a conversation about a “wad of cash” and the gold jewellery of the deceased, and talk of a robbery, in which he did not wish to be involved. The witness said that the applicant said “It could be a job because he was cashed”, although he was not sure whether the applicant had said “rob” or “job”.

13. The Crown case was that the applicant was liable as a participant in a joint criminal enterprise to rob the deceased. There was ample evidence that the applicant and Mr Hicks had returned to the deceased’s house in order to rob him. The Crown case was that the applicant had picked up Mr Hicks, consistently with CCTV footage of the vehicle driving back from Seven Hills where Mr Hicks had been staying towards Toongabbie.

14. In accordance with what was held in Miller v The Queen at [43]-[44] and [131], the question posed by proposed ground 1 would be whether it was open to the jury to be satisfied to the criminal standard that the applicant continued to participate in the robbery, despite contemplating, as a non-fanciful possibility, that death or really serious injury might be occasioned by Mr Hicks acting with murderous intention. However, the jury was in fact directed that it was also necessary for the Crown to establish that the applicant contemplated that death might occur. Argument in this Court proceeded on the basis that whether the jury’s verdict was unreasonable should reflect that direction.

15. The function to be performed by this Court, in determining ground 1, is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of murder: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]. That independent assessment of the evidence is based on the entirety of the trial. However, as the High Court observed in Dansie at [16], the focus is on the points actually advanced by the parties. Their Honours stated:

The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

16. The fact that it is for the parties to identify the aspects of the evidence that warrant the conclusion that the verdict was, or was not, unreasonable, was reiterated in The King v ZT [2025] HCA 9; 99 ALJR 676 at [12].

17. Dansie was an appeal from conviction following a judge-alone trial. In a case such as the present, where the ground is that a verdict returned by a jury is unreasonable, “the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. Those propositions were confirmed in Dansie at [8], [12] and [15], when considering the treatment of M v The Queen in subsequent decisions. They were also confirmed, more recently, in Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [1] and [250].

18. In M v The Queen, their Honours added:

But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

19. In R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] it was said that setting aside a conviction on the unreasonableness ground “is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”. That observation was confirmed in Dansie at [14].

20. The applicant’s submissions were succinct, and their focus was narrow. The submissions turned on two points. The first was that the Crown had not established that the applicant contemplated the possibility that the knife be used with murderous intent to inflict grievous bodily harm or death. The second was that the Crown had not established that the applicant had contemplated that death would result.

21. Both submissions turned on findings the jury must be taken to have made concerning the applicant’s mental state in the two hours after 8.18pm on 15 November 2020. The applicant did not give evidence, as was his right. The reasoning process is necessarily inferential.

22. The efficient and appropriate starting point is the evidence upon which the Crown relied to refute the submission that it had not been open to the jury to be satisfied of the applicant’s guilt. That evidence is sufficiently summarised as follows.

23. The starting point is the knife. The defence case at trial was that the applicant had no knowledge of the knife. This was not propounded in this Court, and for good reason. Although the knife was never recovered, a makeshift knife sheath made of cardboard was found at the scene. DNA analysis of the cardboard was a mixture which overwhelmingly likely originated from the deceased, Mr Hicks and the applicant. The applicant’s fingerprints were on the sheath. It was formally accepted at trial that the applicant had handled the sheath.

19. The DNA evidence went further. The applicant’s DNA was found under the tape which held the cardboard together. That supported the proposition that he was involved in its construction. It was on any view open to the jury to find beyond reasonable doubt that the applicant knew that a knife in the sheath was being taken to the premises.

20. Accordingly, the Crown was required to prove beyond reasonable doubt that the applicant contemplated, as a non-fanciful possibility, that Mr Hicks might use the knife in furtherance of the joint criminal enterprise, intending to kill or cause grievous bodily harm, and that death would occur. The question is whether it was open to a jury acting reasonably to have been satisfied to the criminal standard that the Crown had proved that element of its case. It was contended in this Court that there was no evidence that the applicant was aware of any propensity on the part of Mr Hicks to commit extreme acts of violence. It was said there was nothing to suggest that the robbery would involve violence. To the contrary, it was submitted that the evidence suggested that the deceased might be an easy target, and that the admissions relied on by the Crown (see below) were confirmatory that the robbery had not gone according to plan.

21. In summary, it was said that the Crown was required “to exclude the hypothesis that the applicant did not contemplate that the co-accused might use the knife with the intention of killing the deceased or causing him grievous bodily harm”, and also “to exclude the hypothesis that the applicant did not contemplate that the co-accused might use the knife against the deceased and that death would occur”. It was said that the Crown case was incapable of negativing either hypothesis.

22. Although the submission was advanced succinctly and effectively, we are unable to accept it. The issues posed for the jury were informed by the following matters.

23. First, this robbery involved a degree of planning. The applicant engaged Mr Hicks to join him. Well over an hour elapsed between the first and second visits.

24. Secondly, the jury had evidence that the deceased had been under the influence of alcohol and drugs earlier that evening. There was evidence from when the witness who was the subject of ground 2 attended earlier in the evening that the deceased was “erratic”, “aggressive” and showing signs of agitation.

25. Thirdly, it was amply open to the jury to conclude that the victim’s aggression and affectation by drugs was known to the applicant, who had visited him only hours before his death.

26. Fourthly, the possibility that the robbery, sought to be effected by three men breaking into the victim’s home, would be met by resistance was self-evidently open.

27. Fifthly, the witness who was the subject of ground 2 gave evidence that the applicant and Mr Hicks arrived at his home late that evening, around 11pm, and the applicant said “Johnny fucked up”, that Mr Hicks had stabbed the guy, and that Mr Hicks had said “he stabbed the bloke in the throat, in the body and the leg”.

28. Sixthly, there was the following evidence, which was played before the jury. A few weeks after the death, the applicant was recorded speaking to a friend, saying:

Someone robbed one of the safe houses, blah, blah, blah and the guy took, um, one of the boys too a um, ah, kidnapped him and um like grinded his back. I was like, that’s alright bra, I stabbed someone over nine grand and he died.

34. It will be noted that, subject perhaps to one point, there was nothing which occurred on those occasions which indicated that the victim’s death was unexpected or unforeseen by the applicant.

35. The evidence of what the applicant said concerning the killing in the fifth and sixth points above, and what Mr Hicks said in the applicant’s presence in the fifth point is significant, insofar as it bears upon the state of mind of both men as they drove to the deceased’s home, in circumstances where there is no direct evidence of their state of mind. The evidence falls into two quite different classes. The evidence in the sixth point, in the intercepted telephone statement, was a recording played to the jury of the applicant’s own words. On the one hand, there is no suggestion of emotion or concern or explanation of any accident. On the other hand, the words were spoken some weeks after the death.

36. The evidence in the fifth point was in the immediate aftermath of the killing. However, that evidence was evidence of the recollection of the witness who was the subject of ground 2. His recollection of what was said, and indeed whether there was any such conversation at all, was hotly contested at the trial. The position may be summarised thus:

1. The witness made three written statements, on 16 April 2021, 12 May 2021 and 8 September 2021. The first denied that the applicant and Mr Hicks returned to his house that evening.

2. The second said that he had not said everything that he knew on the first occasion. This statement said that the men returned to his house sometime between 10pm and 11pm, that Mr Hicks asked for drugs, that the applicant and a third man “looked pale white and looked in shock”, that the applicant said “Johnny’s fucked up, he stabbed a bloke” and that as he said this the applicant was struggling with his voice, and “John Hicks just had a look in his eyes”, and that “Johnny tried to talk to me more but I didn’t actually believe Samir about the stabbing so I told Johnny not to talk and I just gave him something so they would all leave”.

3. The third statement said that after the applicant told him that Mr Hicks had stabbed the deceased, Mr Hicks said “I stabbed him in the neck and I stabbed him through the side and it came out his front”. He said that this occurred with Mr Hicks and the applicant and the third man standing around the back of his home.

4. In his evidence in chief, the witness gave a longer account. He volunteered that the applicant was in a panic, and said “Johnny fucked up”, after which Mr Hicks told him that “he was all right, he had his hoodie on, he was all right” and that he had “stabbed the bloke in the throat, in the body and leg”.

5. In cross-examination, it was put to him that in fact no one said “Johnny fucked up”, that no one had turned up that evening at the witness’s house in a panic, and indeed that Mr Hicks only turned up at around 2am on that morning to buy drugs and said nothing about stabbing anyone.

37. There is a tension between what may be inferred from the statement that “Johnny fucked up” and from the applicant’s own words some weeks later. The applicant submitted that greater weight should be given to what was said in the immediate aftermath of the killing, as opposed to on the intercepted call a month later. But that was a matter for the jury to consider. So too was the fact that, after Mr Hicks had stated in the applicant’s presence that he had stabbed the deceased in the throat, in the body and in the leg, the applicant did not convey that it was unexpected. It was open to the jury to accept the witness’s evidence that the applicant and Mr Hicks went to his house later that evening to buy drugs, in the immediate aftermath of the killing. Making the assumption that that is what occurred (which assumption the applicant asked this Court to make), it is not unlikely that the witness, despite giving evidence some 2½ years after the event, had an actual recollection of the occasion. It was shortly after the two men had killed the man he himself had met some four hours earlier. It is quite possible that the evidence of the witness on this issue, which was hotly contested, appeared differently to the jury than does the transcript in the appeal books. In our view, the assessment of this aspect of the witness’s evidence, and any tension between it and the sound recording of the applicant’s telephone call a few weeks later, is an area where the jury enjoyed an advantage over this Court determining an appeal. At the very least, there was the “real potential” for the jury to have enjoyed advantages in assessing the evidence compared to this Court: cf The King v ZT at [4].

38. It was also said on the applicant’s behalf that the knowledge on the part of the applicant that the deceased had been affected by drugs earlier that evening might have led him to conclude that he would be all the more intoxicated later that evening and an easy target. That may be so. Nonetheless, it was open to the jury to accept that, as the witness the subject of ground 2 said, the deceased was “aggressive”, “agitated” and “restless” consistent with using ice and that he remained so when the applicant and the two other men returned to the deceased’s house later that night.

39. The issue, as accepted by Mr Neild of Senior Counsel who appeared for the applicant (Tcpt 19 May 2025, p 1(50) – 2(4), was not whether the evidence was unable to support the mental element of murder but rather “whether or not it was open to the jury to find beyond reasonable doubt that that mental element that the applicant had contemplated that his co‑accused might use a knife with the intention of causing death or grievous bodily harm to the deceased and that death would occur”. The fact that the applicant may not have intended that to occur, and may have hoped and expected that that would not occur, is not greatly to the point. When the evidence is considered as a whole, it was well open to the jury to be satisfied that the applicant contemplated, as a non-fanciful possibility, that (a) the knife would be used, (b) in the violent struggle which that scenario involved, really serious injury such as a penetrating stab wound would be inflicted with the intention of causing grievous bodily harm or death, and (c) the result would be death.

40. Each of us has, independently, reviewed the evidence at trial, focussing on the matters summarised above, to which both parties directed their written and oral submissions, and is satisfied that it was open to the jury to find the applicant guilty of murder.

41. While there should be a grant of leave, this ground should be dismissed.

42. The following orders should be made:

1. Grant leave to appeal, confined to grounds 1 and 2, and otherwise refuse leave.

2. Appeal allowed on the basis of ground 2, but otherwise dismissed.

3. Quash the conviction for murder and order that there be a new trial.

4. Quash the sentence imposed by the Supreme Court on 1 September 2023.

5. List the matter before the arraignments judge at 10am on 4 July 2025.

43. RIGG J: I have had the advantage of reading the draft judgment of Leeming JA and Wright J. I am grateful for their Honours’ analysis of the relevant evidence, legal principles, and parties’ submissions. I agree with their Honours that ground 2 should be upheld and that leave should not be granted in respect of grounds 3 and 4, for the reasons their Honours have given.

44. The applicant’s argument in connection with ground 1 is very focused, and as it was only contended that the evidence was unable to support the mental element of murder, a re-trial for manslaughter was sought in the event that ground 1 was successful (as well as the quashing of the murder conviction and the entry of a verdict of acquittal). The Crown contends that it was open to the jury to find this element proved beyond reasonable doubt, but does not submit that the course proposed by the applicant is inappropriate if the Court takes a contrary view. There is complexity in the law as to this issue: see discussion of relevant authority by Dhanji J in Crane v R [2024] NSWCCA 112 at [146]-[148]. Were mine not a dissenting judgment, it may have been necessary to hear further argument on this issue.

45. I have undertaken my own assessment of whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of murder. The cogency and persuasiveness of competing arguments and inferences said to arise on the evidence must be considered by the Court for itself, except where the jury was at an advantage: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14] and [19]-[24]. In a case such as the present, where the prosecution case on the relevant issue was circumstantial, and where the applicant did not give evidence, the advantage must be slight: Dansie at [17].

46. I am not satisfied beyond reasonable doubt that the applicant subjectively contemplated that Mr Hicks would use the knife in furtherance of the joint criminal enterprise, intending to kill or cause grievous bodily harm, and kill the deceased. As mine is a dissenting judgment I do not regard it as essential to explicitly determine whether it is one or the other, or both, of the two aspects of the mental element which gives rise to a reasonable doubt. I will shortly refer briefly to the parts of the evidence that have been important in forming this view.

47. I am mindful of the judgment of Gordon, Edelman and Steward JJ in Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 at [58]-[59]. Their Honours described as correct a concession made on behalf of one of the appellants that foresight of the consequence of death naturally flows from foresight of the consequence of grievous bodily harm, particularly where there is foresight of the principal acting with murderous intent. I am not of the view that their Honours’ statement, relevant to directions to a jury, requires in this instance a process of considering whether the applicant contemplated the infliction of grievous bodily harm, then drawing from that proposition the inference that he contemplated death. As Leeming JA and Wright J have noted, the trial and appeal were squarely conducted on the basis that the Crown was required to prove the applicant’s contemplation that Mr Hicks would use the knife with murderous intent, and cause death. Further, contemplation of Mr Hicks acting with murderous intent is very much a live issue on appeal.

48. I accept the relevance of the circumstances outlined by Leeming JA and Wright J at [28]-[33], considered as a whole. I regard as important the fact that the three men were not emotionally motivated to confront the deceased. They had opportunistically determined to rob someone whom two of them had somewhat randomly met that day, observing money and jewellery in his house. There was sufficient time for contemplation of consequences, but this was not a robbery that had been so carefully planned as to suggest significant commitment to or investment in it. There was no evidence that the applicant or other men were desperate for money.

49. Although the evidence permitted the inference to be drawn that the applicant had seen the deceased affected to some extent by drugs and alcohol, including signs of aggression and being erratic, he was a slight or “skinny” man who lived alone. There was no evidence that he was a violent man or likely to be armed - with the possible exception of a jade hammer that was not photographed or explored in submissions. The Crown Prosecutor at trial submitted, of the photograph in evidence of the deceased, “Doesn’t present, you might think, from the photo as someone that looks like a particularly hard man physically. Something of an eccentric, you might think.” Apart from this photograph and the evidence of the pathologist as to his size, the evidence of the former wife of the deceased was that she saw him dancing in the sunshine earlier that day to music playing inside. She also saw him at a time not long before the first visit by the applicant, the Crown witness and the other man, when she dropped his key off to him at about 6:15 pm, and did not describe drug or alcohol affectation at that time. The neighbour of the deceased described him as a bit of a loner and a hoarder.

50. The deceased was 49 years old. The photographs of the three men who confronted him indicated they were younger and likely stronger. They had a knife. It is not clear whether the third male entered the house or stayed outside keeping watch. Either way, he was readily available to assist if a problem arose. The evidence does not suggest the applicant likely foresaw any great difficulty in either robbing the deceased or quickly leaving if met with significant resistance.

51. The knife was not recovered by police. There was no evidence in the case against the applicant as to its size, other than the forensic pathologist responding to a proposition raised in the cross-examination of counsel for Mr Hicks of the prospect of use of a small knife for cutting apples in the kitchen, with a maximum blade thickness of 15 mm, by stating that such a knife would not have been likely to reach the hilum of the lung.

52. There was no evidence that the applicant had any reason to believe that Mr Hicks was particularly violent (other than the violence inherent in being prepared to rob someone) or unstable. There was evidence that Mr Hicks had consumed drugs that day but was not apparently affected by the same.

53. I regard as important the applicant’s presentation shortly after the deceased was killed. He was described as being in a panic when he said “Johnny fucked up” and that someone got stabbed. I regard this as consistent with the applicant not having contemplated that Mr Hicks would kill the deceased, with intent to do so or at least cause him grievous bodily harm. It is potentially also consistent with the applicant having contemplated those things but not intended them, or not agreed upon this as a possible incident of the enterprise, as argued by the Crown. However I do not regard there being anything more explicit the applicant would be expected to have said, had he not contemplated Mr Hicks’ additional crime.

54. I regard this comment in the immediate aftermath of the killing of the deceased as considerably more important than the recorded conversation weeks later, set out by Leeming JA and Wright J above at [31]. On the Crown case the applicant did not stab the deceased. The person to whom he was speaking was laughing, and gave evidence that “we just talk shit to each other, and just have a laugh.” The applicant’s apparent callousness does not greatly assist my resolution of the question of whether it was open to the jury to find the requisite mental state at the relevant time proved beyond reasonable doubt, although I have taken it into account with all the other circumstances, and considered these as a whole.

55. There was evidence before the jury of out of Court statements made by the same witness as referred to in the paragraph above, not adopted by him in Court, of the applicant making other statements that could be taken as admissions, which were not recorded. Reliance on these representations for the truth of what was said would be use of second hand hearsay contrary to s 82 of the Evidence Act 1995 (NSW). I do not regard this material as of any evidentiary value.

56. I am highly mindful of the fact that it is fundamental to our system of criminal justice, in relation to allegations of serious crime tried by jury, that the jury is “the constitutional tribunal for deciding issues of fact”: The Queen v Baden-Clay at [65]. I accept also, that despite the relatively slight advantage of a jury in a circumstantial case referred to above at [45], the jury has other advantages such as its collective wisdom and experience of ordinary affairs: The King v ZT at [9].

57. Nonetheless, I am left with a reasonable doubt regarding the Crown’s proof of the requisite mental element for murder. In the circumstances of this case, it is a doubt that I regard as one the jury ought also to have experienced.

58. The orders I would accordingly propose are as follows:

1. Grant leave to appeal, confined to grounds 1 and 2, and otherwise refuse leave.

2. Appeal allowed on the basis of grounds 1 and 2.

3. Quash the conviction for murder.

4. Enter a verdict of acquittal on that charge.

5. Order that the matter return for trial on the charge of manslaughter.

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