Conway v The King

Case •

[2023] NSWCCA 265

•

20 October 2023

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Conway v R [2023] NSWCCA 265
Hearing dates: 27 September 2023
Date of orders: 20 October 2023
Decision date: 20 October 2023
Before: Basten AJA at [1];
Cavanagh J at [77];
Dhanji J at [78]
Decision:

(1)   Grant the applicant leave to appeal against his conviction for murder.

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeal against conviction – murder – single fatal knife wound to the abdomen – refusal of application to discharge jury – application based on prejudicial statements during cross examination that accused had propensity for violence – whether failure to discharge jury gave rise to miscarriage of justice – whether conviction unreasonable and unsupported by evidence

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases Cited:

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22

Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28

Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20

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

Miller v R [2015] NSWCCA 206; 252 A Crim R 486

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6

Category:Principal judgment
Parties: Ian Matthew Conway (Appellant)
Rex (Respondent)
Representation:

Counsel:
S Kluss (Appellant)
G Newton SC / G Westgarth (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2021/00074864
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Criminal
Date of Decision:
11 November 2022
Before:
Wilson J and jury
File Number(s):
2021/00074864

HEADNOTE

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

In November 2021, Ian Matthew Conway was convicted on a charge of murdering Christopher Ward on 8 March 2021.

The incident that resulted in the death of Mr Ward occurred at Mr Conway’s unit in Broadmeadow. The individuals present at the time were Mr Conway and his wife Katrina Coghlan, Mr Ward, and Ms Renee Lee who lived in the same building. Mr Ward and Mr Conway were both affected by methylamphetamine, with Mr Ward behaving erratically earlier in the afternoon. According to Ms Lee, after Mr Ward had settled down Mr Conway produced two knives and challenged Mr Ward to a “muck around” play fight. Mr Ward, sitting next to Ms Lee on the couch, refused. Mr Conway, standing across a coffee table from Mr Ward, lunged at him and stabbed him in the abdomen.

It was not disputed that Mr Ward died as a result of internal bleeding following the knife wound to his abdomen, not that Mr Conway caused that wound. At trial, Mr Conway gave evidence that he had acted in self-defence, having simply responded when Mr Ward was walking towards him holding a knife. Mr Conway appealed his conviction on two grounds.

The first ground was that the trial judge failed to discharge the jury on the basis of evidence given by Ms Lee, on three distinct occasions, indicating that Mr Conway had a propensity for violence and had committed a robbery. The second ground was that the conviction was unreasonable and unsupportable on the evidence.

The Court (Basten AJA, Cavanagh and Dhanji JJ agreeing) held, granting leave to appeal but dismissing the appeal:

As to ground 1 – discharge application

  1. Leave to appeal was required because the grounds were not limited to a question of law alone. Due to the seriousness of the charge and the sentence of 16 years imprisonment it was appropriate to grant leave to appeal against the conviction: at [1].

Criminal Appeal Act 1912 (NSW), s 5(1) applied

  1. The challenge to the refusal to discharge the jury required a finding that there had been a miscarriage of justice, pursuant to the third limb of s 6(1) of the Criminal Appeal Act. However, the applicant did not need to establish that there was no “substantial” miscarriage: [32]-[34].

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 discussed; Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 applied

  1. This issue turned on remarks made by Ms Lee during cross-examination. The remarks should be viewed in the context of the course and content of her evidence as well as other aspects of the trial: [6]. Ms Lee’s views regarding the characters of the applicant were expressed in response to questions asking her to explain her own conduct towards them. No intention to malign the appellant should be drawn Ms Lee’s evidence: [40].

  2. The three passing references viewed objectively, and having regard to the directions given by the trial judge, did not have a prejudicial effect sufficient to deprive the appellant of a fair trial and could not realistically have affected the verdict of the jury: [34], [47].

As to ground 2 – unreasonable verdict

  1. A ground asserting that the verdict was unreasonable requires the court to form its own view, based upon an independent assessment of the evidence, as to whether it entertains a reasonable doubt as to the guilt of the accused; if it does, it must consider whether the doubt is one which the jury, having the benefit of hearing the evidence, could properly have resolved: [69].

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

  1. Reading the whole of the evidence the Court entertained no reasonable doubt as to the prosecution case. The evidence was not inherently implausible or inconsistent with objective facts. The jury might have disbelieved key aspects of Ms Lee’s evidence and accepted the possibility that the appellant was telling the truth, but they did not. Viewed objectively, the appellant’s evidence did not raise a reasonable doubt as to the truth and reliability of Ms Lee’s account: [75], [77], [78].

JUDGMENT

  1. BASTEN AJA: On 31 October 2022, the applicant, Ian Matthew Conway, was put on trial in Newcastle on a charge that on or about 8 March 2021, he did murder one Christopher Ward. On Friday 11 November 2022, the jury returned a verdict of guilty of murder. The present application is for leave to appeal against the conviction. As the appeal is not limited to a question of law only, the applicant requires leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Given the seriousness of the charge and the fact that he was sentenced to imprisonment for 16 years, it is appropriate to grant leave to appeal against the conviction. (Mr Conway will be referred to as the appellant hereafter.)

  2. The appellant relies upon two grounds of appeal, namely (i) the trial judge failed to discharge the jury on the basis of evidence given by the main Crown witness indicating that the appellant had a propensity for violence and had committed robbery, and (ii) the conviction was unreasonable and unsupportable on the evidence.

Factual background

  1. The evidence as to the circumstances of Mr Ward’s death fell within narrow confines. It was not in dispute that Mr Ward died as a result of internal bleeding following the thrust of a knife into his abdomen. There was no dispute that the wound was caused by the appellant. The prosecution case was that the appellant inflicted the wound whilst Mr Ward was seated on a couch in the living area of the appellant’s unit. The defence case was that the appellant responded when Mr Ward was walking towards him, holding a knife. The appellant claimed he acted in self-defence.

  2. The ground floor area of the appellant’s unit at Broadmeadow Road, Broadmeadow contained a kitchen at the rear, a lounge room and a garage facing the street with a door opening into the lounge room. In the lounge was a couch and, at the time, a low coffee table in front of the couch. The couch was facing the door into the garage. There was a bedroom area upstairs.

  3. The unit was occupied by the appellant and his wife, Katrina Coghlan. Ms Coghlan was in the unit at the time of the stabbing, but she was unwell (and indeed died during the trial) and did not give evidence. The fourth person in the unit at the time of the stabbing was Renee Lee who occupied an apartment at the rear of the same building. Ms Lee gave evidence in the prosecution case; the appellant gave evidence in his own defence. The only other witness who gave significant evidence was Dr Benjamin Harding who conducted an autopsy on the deceased Christopher Ward on 10 March 2021.

  4. The first ground of appeal, addressing the failure of the trial judge to discharge the jury, turned on remarks made by Ms Lee in the course of her cross-examination. However, the remarks should be viewed in context, and therefore by reference to the course of and content of her evidence, and indeed other aspects of the trial. The second ground of appeal requires the court to review all the material evidence. It will be convenient to address the evidence given by each of three significant witnesses, in the order in which they were called.

Prosecution case – Renee Lee

  1. Ms Lee gave evidence that she had been invited to the unit by Ms Coghlan. There were drugs available at the unit and she saw Mr Ward inject himself. She said that he then became, “more vocal, a bit erratic. Just going into the garage, yeah, just like came out of his shell. Later on he was on all fours, barking at the front door, like a dog”. [1] She said that she was offered drugs but did not partake. She did not see anyone else consume drugs, although she thought that Ms Coghlan and Mr Conway may have been affected. [2] She was unable to describe conduct or conversations which provided support for that view, but the appellant agreed he had taken methylamphetamine that afternoon.

    1. Tcpt, 02/11/22, p 105(30).

    2. Tcpt, p 113(35).

  2. Ms Lee said that she was sitting at the end of the three-seater couch and that Mr Ward came and sat next to her. By that stage he was “quite quiet”. [3] He sat very close to her, “butted up” against her. [4] She then described the appellant coming over towards them carrying two knives. She was not sure whether he came from the garage or the kitchen. He put a blade down on the arm of the chair next to her, and said, apparently to Mr Ward, “[l]et’s have a muck around”. [5] The evidence continued: [6]

“Q.   So when you’ve – that knife that was placed on the arm of the lounge was put there, were you aware there was any other knives?

A.   I knew Ian [the appellant] had one and he wanted Chris [Ward] to pick it – that one up just to have a squabble muck around, yeah.

Q.   Okay, and what did Chris say?

A.   ‘No, no. I couldn’t be f’ed,’ or yeah, ‘Not in the mood,’ just things like that, yeah.”

3. Tcpt, p 114(30)-(40).

4. Tcpt, p 142(45).

5. Tcpt, p 115(40).

6. Tcpt, p 116(33)-117(40).

  1. Ms Lee then described Mr Ward pulling out a small amount of cannabis and preparing to chop it up to put in a bong.

“Q.   Now, the pulling out of the cannabis and – when did that occur in relation to the knife being placed on the arm of the lounge?   

A.   Just prior but during as well, yeah.

Q.   So the sequence of what happened in relation to that knife is it’s placed there, you’re saying that Ian says something to Chris about wanting to engage in some sort of activity with the knife?

A.   Yeah, just muck –

Q.   And your evidence is that Chris has said, “I’m not interested”?

A.   Yeah, he couldn’t be bothered, yeah.

Q.   What happened next?

A,   A bit of, I don’t know, ‘Why not? Come on,’ back and forth from them and I can’t recall if I – I think I stood up. I felt a bit uncomfortable. I think I stood up and just sort of stepped back a bit off the lounge. Yeah, I can’t recall if I stood up or stayed seating till – but Ian was just mucking around and sort of was standing in front of the coffee table and just lunged at him with the knife and, yeah, there was no blood or anything. Yeah, I didn’t think anything of it, to be honest. Sorry, I was seated at the time but, yeah, after that I stood up.”

  1. Ms Lee then described the knife that the appellant lunged with as a “hunting knife”. She said he was standing on the opposite side of the coffee table which was about 40 cm from the lounge. The examination continued: [7]

    7. Tcpt, p 118(14)-(40).

“Q.   So he’s leaned over the coffee table. Was Chris sitting or standing when Ian –

A.   Sitting, and he was quite, yeah, had a bit of a belly on him, quite a big man, yeah.

Q.   What did Chris do?

A.   He just sort of put his hand on it and looked at it and then there was no, like I said, no blood, no evidence of anything. I had stood up, stepped away and he just said to Ian, “Why did you do that for?” and that was it.

…

Q.   Did you or he lift the shirt and look at the injury at all at any time?

A.   I think he lifted it. I said, ‘We need to look at it’, and he lifted it and that’s when it became evident that it was probably worse than what it was meant to be, yeah.

Q.   When you say it was worse, what did you see?

A.   Just a really deep, long gash and sort of like, I don’t know, it looked like little worms falling out of him.”

  1. Ms Lee then described the appellant as “pacing a bit, panicked, didn’t know what to do”. [8] The examination continued: [9]

“Q.   So Ian is pacing?

A.   Yeah.

Q.   And I’d asked you earlier whether anyone said or did anything about what they planned to do next?

A.   After being stabbed, yeah.

Q.   Yeah, so who said or did what?

A.   Ian was panicking a bit that he was going to dob and wanted to slit his throat. And I said there was no need for it and I asked for something to stop the bleeding and, I don’t know, it all happened so quick and I just called the ambulance and the police and said he wasn’t going to dob, ‘Are you, mate?’ and he said, ‘No’ and he’s looked at me and said I was hurting him, to just let him die, he knew he was going to die anyway, he was going grey and I said, ‘No’, I was going to do my best not to let him die and I said to Ian, ‘You need to go, you need to get out of here’ and I just pressed triple-0 and Ian left.”

8. Tcpt, p 119(9).

9. Tcpt, p 119(26)-(41).

  1. The recording of the triple-0 call was then admitted and was about to be played to the jury when the judge noted that Ms Lee, who was at an advanced stage of pregnancy, appeared to be distressed. She was invited to leave the room while the recording was played, which she did. After she returned to the witness box, Ms Lee was given a plan of the ground floor of the unit and marked where the knife was placed on the arm of the couch, where she was sitting, where Mr Ward was sitting next to her and where the appellant was when he lunged towards Mr Ward with the knife.

  2. Ms Lee also gave evidence that she visited the local pharmacy for medication the following morning and saw the appellant sitting in the medical centre watching the news. Her evidence continued: [10]

“Q.   Did you and he speak to each other?

A.   Yes. I sat down. Well, I asked him how – what was going on and sat down. He said he was watching news to see if Chris survived. If not, he was going to the hospital to make sure he didn’t survive so he couldn’t dob.”

10. Tcpt, p 130(28).

  1. In the course of cross-examination, Ms Lee was taken to aspects of her police statement and the following exchange took place: [11]

“Q.   Do you see there that you told the police that, ‘He went back to, oh yeah, “I’m having a shower. We’re going to Troy’s house ‘cause we got ripped off”.’ Do you see that?

A.   I do see that.

Q.   So, did you understand Chris to be suggesting –

A.   That didn’t come from Chris’ mouth, that came from Ian’s mouth. They were going to go kick his door in cause they said they got ripped off.

Q.   Did you see or hear Chris getting angry at one stage because he couldn’t find his drugs?

A.   No, not that I recall.”

11. Tcpt, p 152(30).

  1. Ms Lee was then challenged as to her memory of particular aspects of the events and the cross-examiner put to her: [12]

    12. Tcpt, p 160(17).

“Q.   The actual fact of the matter is that you don’t remember because you weren’t sitting on that lounge when Chris was stabbed, were you?

A.   Yeah, I was but –

Q.   You were in the kitchen?

A.   No, I wasn’t.

Q.   So you’re saying that the accused Ian Conway –

– he was standing on the other side of the coffee table closest to the garage, right?

A.   That’s correct.

Q.   And where you’ve marked I on exhibit H, the diagram?

…

Q.   So you’re saying now that you don’t know whether that was the position you were sitting –

A.   That’s where I was sitting –

Q.   – at the time of the stabbing?

A.   That’s where I was sitting, yes, when –

Q.   Well, that’s what you told us –

A.   When the knife got put down.

Q.   When the knife got put down?

A.   Yes.

Q.   Yes but at the time of the stabbing –

A.   Well, Ian lunged –

Q.   – where were you sitting? You don’t know?

A.   I recall being there but I’m, like I said, I don’t know. When I jumped up – when Ian lunged, I just remember seeing that, jumping up in front of Ian and being where that towel was. I’m the one who dropped that towel. I’m the one who put that towel there. I had to get it off Katrina to put it on him. So I was on the lounge. I had blood on my own clothes, but yeah.

Q.   All right, well, where was Chris at the time of the stabbing?

A.    On the lounge.

Q.   Whereabouts on the lounge?

A.   On top of me, pretty much.

Q.   On top of you?

A.   Mm hm.

Q.   Well, surely he wasn’t on –

A.   So half on – half in the middle, half on that side there. He wasn’t centre on the lounge. I wasn’t centre. I was butted up. He was butted up.”

  1. Ms Lee was then asked to describe how he (Mr Ward) was sitting on the lounge; the cross-examiner continued:

“Q.   Well, it would’ve been pretty difficult from that position for Ian to be able to make contact with and stab Chris who was sitting back on the lounge, wouldn’t it?

A.   No. Like I said, he was like that, had a big stomach. Ian is tall, lanky, and the coffee table is low. It’s not that wide.

…

Q.   See, what I suggest is you have not told the truth about how this stabbing occurred, do you agree or disagree?

A.   Disagree.

Q.   I suggest you’ve made up this version of how the stabbing took place, do you agree or disagree?

A.   Disagree.

Q.   See, is it the case that you did not in fact, see the stabbing?

A.   I wish I didn’t, please. I can’t do a day – I can’t do this shit, I didn’t have to do this, a man died and you know what the fuck you did –.”

  1. The judge intervened:

“Q.   Ms Lee.

A.   I can’t do this, I can’t.

Q.   I understand, it’s almost over.

A.   I can’t do it, I didn’t want to do it in the first place, never wanted to.

Q.   I understand, it’s almost over, we’re nearly done. If you could just take a deep breath –

A.   Who would lie about this shit?

Q.   Ms Lee.

A.   Oh my God, I don’t want to do this please.

Q.   Look –

A.   I retract everything, there you go, I’m done, let him walk, let him have his –

Q.   Ms Lee, Ms Lee, please, please, please, listen.

A.   Mm-hmm. This has ruined my life too.”

  1. The jury then left the room and in their absence the judge continued to reason with the witness, explaining that the cross-examination was not a personal attack and asking her to tolerate it for a few more minutes. She agreed. After some brief further cross-examination, Ms Lee was excused for the day and asked to return with a support person the following morning. Another witness was interposed.

  2. The following day, the cross-examiner obtained agreement from Ms Lee that she had told lies to the police and suggested that she did so to protect herself: [13]

    13. Tcpt, p 184(42).

“Q.   Well one of the first things you said to the police was whether or not you were in trouble, is that right?

A.   Yeah.

Q.   So you thought you might be in trouble?

A.   I guess that self-guilt –

Q.   So isn’t it the case –

A.   – because I was lying. I lied –

Q.   Sorry I don’t mean to interrupt. Go on.

A.   No it was self-guilt ‘cause I lied for Ian – I lied.

Q.   So you were petrified that you might be found out to be untruthful?

A.   No. I was petrified of what I just saw and that that was gonna happen to me.

Q.   Were you concerned that you had delayed calling triple-0 for a period of time unnecessarily?

A.   It wasn’t unnecessarily no. I did it quicker than I should’ve. That’s the only reason why Ian left, I said, ‘I’m on the phone to triple-0.’ It’s the only way I could make sure that he was gone.”

  1. She was then cross-examined about an earlier event where she and her partner had stolen a phone. She did not deny the offending occurred, but gave an explanation as to her limited role in it.

  2. Ms Lee was also cross-examined about statements the appellant had made following the stabbing: [14]

“Q.   See what I suggest is at no time did the accused say anything about slitting the throat of Chris Ward.

A.   Yes he did.

Q.   He said nothing about wanting to cause further harm to Chris Ward, did he?

A.   Yes he did, and he did the next day in the, in the doctor’s surgery also. He said he was gonna dob.”

14. Tcpt, p 192(43).

  1. Early in the cross-examination, counsel sought agreement that she was at the appellant’s apartment because she was interested in drugs. The cross-examination continued: [15]

    15. Tcpt, p 139(28).

“Q.   So is it really simply the case that Katrina spoke to you and invited you over to partake in the consumption of the drug ice, methylamphetamine?

A.   That’s speculation. I have no idea. She invited me over. I have my own theory, but that’s speculation also, sorry. I can answer that question truthfully.

Q.   Isn’t it the case that you went there in the expectation that you would be able to consume some ice?

A.   No, not at all.

…

Q.   So if there were drugs being consumed, which you weren’t interested in taking and there was someone who you’d been told was acting like an idiot on drugs, what was the attraction of going to unit 1, rather than sitting there and enjoying your glass of wine?

A.   The reputation that Ian and Katrina have is horrifying.

Q.   I’m not talking – what I’m asking you is –

A.   I was scared, okay.

Q.   – what was your attraction to go to the unit?

A.   There was none. Hence why I kept putting it off. I’d been asked numerous times. I was on my own. I had no-one home with me. I was intimidated and scared.”

  1. The first issue raised on the discharge application relied on the statement that the appellant and his partner had a “horrifying” reputation.

  2. Later, counsel returned to repeat the line of cross-examination: [16]

    16. Tcpt, p 197(35).

“Q.   I suggest that you had been invited by Katrina Coghlan to come over to the unit because there was a male there Chris Ward who had some ice.

A.   No, that wasn’t suggested.

Q.   And that you could share in that, you could have some?

A.   No, that’s not what happened or was suggested. I don’t know what you’re trying to say that I went there for drugs. I don’t understand what you’re trying to say.

Q.   Well, I’m not trying to say anything. I’m saying that you were invited over by Ms Coghlan?

A.   Yes, I was.

Q.   Told that there was a gentleman there who had some good stuff?

A.   On drugs, no.

Q.   Had some good stuff, some ice?

A.   You’re pulling words out of nowhere. Good stuff? I – I’ll say it again, I said it yesterday and I’ll say it again. I was told to come and look at someone carrying on in her apartment and no, I didn’t know that Ian was there at the time when she come and knocked on my door to come and look at this idiot that was influenced by drugs. Didn’t know what drugs, didn’t really care to be honest but you don’t say no to Ian and Katrina.

Q.   And I suggest that you went there with the expectation that you could partake in smoking ice?

A.   No.

Q.   And in fact while you were there you were given an ice pipe –

A.   No.

Q.   – so that you could smoke the ice?

A.   I said it yesterday, I’ll say it again, no.

Q.   And that while you were there you observed Chris Ward injecting ice?

A.   Yes, I did observe that, yes.

Q.   And you knew that the accused and Katrina Coghlan were going into the garage where they were using ice as well?

A.   Didn’t go in the garage, no, I never said that.

Q.   You knew that they were partaking in ice?

A.   No, I did not. I knew they were drug addicts, yes.”

  1. The cross-examiner suggested, with a lack of precision as to timing, that there was an argument between the appellant and Mr Ward. There was an attempt to place it by reference to an occasion when the appellant was coming down from the upstairs part of the unit. Ms Lee denied that she saw anyone go upstairs. The cross-examination continued: [17]

    17. Tcpt, p 203(6).

“Q.   And I suggest that there was an argument and Chris was again attempting to go into the garage.

A.   I don’t know. He came in and out of the garage a lot that night. I don’t know what you’re talking about but no, he never went upstairs, he never came down from upstairs so I don’t know where that’s coming from.

Q.   All right, so you agree that there were occasions, multiple occasions when Chris went into the garage. Is that what you’re agreeing with?

A.   Yeah, in and out of the garage, yes.

Q.   I’m suggesting that on one of these occasions the accused confronted Chris and said, ‘Why are you going in there? What are you doing?’ Do you recall that being said?

A.   He could have. I don’t know.

Q.   Chris replied, ‘Do you want to have a go?’ I suggest that you and Katrina at this time were in the kitchen.

A.   Katrina was never in the kitchen.

Q.   I suggest that Chris walked back to the table and grabbed the knife off the table.

A.   What table’s that?

Q.   Off the coffee table.

A.   Never saw a knife on the coffee table.

Q.   And walked towards the accused.

A.   No.

Q.   I suggest the accused was just in the lounge room near the door to the garage at that point in time.

A.   I don’t recall any of that happening. So he was – could’ve been near the door at any point in the night, but that didn’t happen.

Q.   I suggest that this happened shortly before the stabbing, immediately before the stabbing.

…

When I say ‘immediately’, within seconds of the stabbing occurring.

A.   No, I – no.

Q.   I suggest that Mr Ward walked towards the accused holding the knife.

A.   No.

Q.   I suggest that –

A.   He never had a knife.

Q.   – where they were standing –

A.   Never had a knife.

Q.   I suggest where they were standing was just in front of the door to the garage.

A.   Sorry, no. Your story, I don’t know.

…

Q.   I suggest it’s in that area that Mr Ward and the accused had this confrontation that I’m referring to.

A.   No. I didn’t witness any confrontation like that, no.

Q.   I suggest that you didn’t see it because you were in the kitchen or sitting on that chair in the corner –

A.   No.

Q.   – and you wouldn’t have had a view of what was taking place.

A.   No. I made sure my back was to the wall and I saw everyone. Ian and Katrina have got a reputation of hurting people. I’m not stupid.

HER HONOUR

Q.   Just try to answer the questions.

A.   Yep.

Q.   I think from remembering that Mr Stewart’s asking you about the seconds before the stabbing. Your answer, I think, is that you disagree that Mr Ward –

A.   Yes.

Q.   – and the accused were near that garage door.

A.   They weren’t arguing, yes. They weren’t near the door. Sorry.”

  1. The reference to the appellant and his partner having “a reputation of hurting people” was the second statement which was relied upon as part of the discharge application.

  2. The cross-examiner returned to the events following the stabbing: [18]

    18. Tcpt, p 207(45).

“Q.   If I could just clarify, did you say that you went and got your motor vehicle at some stage?

A.   I moved it. Didn’t go and get it. I moved it from the driveway, yes.

Q.   Moved it from the driveway?

A.   Yes.

Q.   What was your purpose in moving it from the driveway?

A.   I made it clear and I’ll say again. Because the suggestion that was made to put him in the car and for me and Katrina just to dump him. Pretty much “Dump him” is the words Ian used.

Q.   I suggest that he didn’t say anything about dumping –

A.   You can suggest, but he did.

Q.   – Chris Ward.

A.   He did.

Q.   In order to move the car did you go into your unit?

A.   No.

Q.   You didn’t? So did you –

A.   I took –

Q.   – have the keys to your motor vehicle?

A.   Yes, I did.

Q.   You had them with you?

A.   They’re on my house keys, yes.

Q.   You had your house keys with you?

A.   They’re the only thing I took with me, yes.

…

Q.   Do you recall when you were giving evidence you said when you left to go over to unit 1 you left your smokes and your phone and –

A.   I didn’t say anything about cigarettes but I said I left a, a bottle of wine which I just poured un-sipped. I can tell you exactly what I said. And I left my phone there, yes.

…

Q.   How’d you call triple-0?

A.   I don’t know. I don’t recall whether it was my phone or theirs.

Q.   You called triple-0 on your phone, didn’t you?

A.   I don’t recall. If that’s what it states, yes, I had my phone. I don’t know. I don’t remember exactly about the phone. [The prosecutor agreed that the triple-0 call had been made from her phone and Ms Lee agreed that she had had her phone with her.]

Q.   When you were justifying your explanation for why you left home and how you left home, you gave evidence that you didn’t even take your phone.

A.   I didn’t think I did, no cause I didn’t plan on staying, like I kept saying. To be honest, I thought Ian was going to rob me, take my car and my money, cause that’s your MO – that’s his MO, sorry.

Q.   You’re just making this up, aren’t you?

A.   No, I’m not. History. His history.”

  1. The last reference to thinking that the appellant might rob her and that was his modus operandi formed the third basis of the discharge application.

Ground 1 – discharge application

  1. A complaint on appeal from a conviction as to a failure by the trial judge to discharge the jury invokes the third limb of s 6(1) of the Criminal Appeal Act, namely that, “on any other ground whatsoever there was a miscarriage of justice”. Subject to one qualification which will be addressed below, it is well- established in the jurisprudence, both of the High Court and this Court, and other intermediate courts of appeal in Australia, that a ground which gives rise to a miscarriage of justice may be the subject of the proviso if the court considers that “no substantial miscarriage of justice has actually occurred”. The importance of the two-step procedure is that, whilst the convicted person must satisfy the court that there has been a miscarriage, once that occurs the onus of persuasion moves to the Director to establish that there was, in the actual circumstances, no “substantial” miscarriage.

  2. The qualification arises from a statement in Crofts v The Queen [19] that,

“… the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in the circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?”

19. (1996) 186 CLR 427 at 441; [1996] HCA 22.

  1. That there was a conflation of the two limbs in s 6(1) seems reasonably clear. In any event, the conventional approach to the third limb of s 6(1) has subsequently been reaffirmed by the High Court in Hofer v The Queen. [20] Similarly, in Patel v The Queen, [21] a case involving an application to discharge the jury on the basis of a change in direction in the prosecution case, the High Court reaffirmed that the issue was whether “there was a miscarriage of justice”. [22] After reviewing the evidence, the Court concluded that there had been “a miscarriage of justice”. [23] Subject to consideration of the proviso, the Court held that “the miscarriage warrants an order for a new trial”. [24] The Court then proceeded to apply the proviso, by asking whether the Court was persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused’s guilt of the offence. [25]

    20. (2021) 274 CLR 351; [2021] HCA 36 at [41] and [47] (Kiefel CJ, Keane and Gleeson JJ) and at [123] (Gageler J).

    21. (2012) 247 CLR 531; [2012] HCA 29.

    22. Patel at [67].

    23. Patel at [118].

    24. Patel at [119].

    25. Patel at [120].

  2. If Crofts dictated a different approach, it is difficult to accept that the High Court would not have said so in Patel. In fact, Crofts was not referred to in Patel. That is unsurprising: if Crofts intended to make a major change in the understanding of how the principles governing miscarriage of justice and the operation of the proviso should apply with respect to a miscarriage where inadmissible evidence had been allowed to go to the jury, and a discharge application refused, the Court would surely have said so.

  3. The issue as to whether Crofts had adopted a different approach in circumstances where there had been a discharge application based on inadmissible evidence was raised before this Court in Hamide v R. [26] The reasons of Bell P (with whom Davies J agreed) identified a submission on behalf of the Director that the passage in Crofts “conflates the proviso test with the miscarriage test”, [27] but concluded that it was not necessary to determine whether that was so because the Director had not invoked the proviso in Hamide. [28] The state of the authorities was most recently reviewed by Dhanji J in Ilievski v R; Nolan v R (No 2),[29] concluding that:

“88   This Court is bound by relevant High Court authority post-dating Crofts v The Queen as to how s 6 of the Criminal Appeal Act is to be applied. That authority includes Patel v The Queen, together with the various cases dealing with the proviso, including Weiss v The Queen [30] and the cases that have followed.”

26. (2019) 101 NSWLR 455; [2019] NSWCCA 219.

27. Hamide at [82].

28. Hamide at [84].

29. [2023] NSWCCA 248 at [71]-[88]; Beech-Jones CJ at CL assuming the correctness of the analysis at [13]; Lonergan J agreeing with Dhanji J.

30. See fn 32 below.

  1. In the present case, the Director did invoke the proviso and, if it were necessary to resolve the issue, in the interests of fairness to the appellant, the conventional approach should be applied and the Director should bear the burden of satisfying the Court that any miscarriage identified was not substantial in the circumstances. The proper question for this Court is whether, viewed objectively, the impugned evidence had a prejudicial effect sufficient to deprive the appellant of a fair trial, [31] or which could realistically have affected the verdict of the jury, in accordance with the principle articulated in Edwards v The Queen [32] and Hofer v The Queen. [33] That requires reference to the specific language of the inadmissible evidence, together with a consideration of the context in which it came before the jury and the directions in relation to it. It is also instructive to identify the matters relied upon by the trial judge in rejecting the discharge application. Statements seen in a transcript and analysed retrospectively may appear in a different light to that appreciated by the trial judge listening to the evidence unfold as the jury did.

    31. Wilde v The Queen (1988) 164 CLR 365 at 375 (Deane J); [1988] HCA 6; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [47]-[49] (French CJ, Crennan, Kiefel, Bell and Keane JJ).

    32. (2021) 273 CLR 585; [2021] HCA 28 at [74] (Edelman and Steward JJ), citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18].

    33. Hofer (fn 20 above) at [123] (Gageler J).

  2. The discharge application was not made until Monday, 7 November 2022, although the first of the impugned statements was made on the afternoon of Wednesday 2 November. The second and third statements were made on Thursday, 3 November. As the trial judge noted, the initial indication by email to the judge’s chambers on the Monday morning was that the offending passages be struck from the transcript before it was provided to the jury. It was only on further reflection that an application to discharge the jury was added. [34]

    34. Interlocutory judgment, 07/11/2022, pp 4-5.

  3. The submissions for the appellant in this Court stated that the “criticism [by] her Honour as to the ‘timeliness’ of the application was unfair given the fact that each of the impugned statements occurred in cross-examination, in a fast-paced trial, when the order of witnesses was varied to suit the court and Crown and when the cumulative effect of the evidence, was necessarily to be assessed after the transcript was provided”.

  4. This submission should not be accepted in its terms. What the trial judge in fact said in her reasons was as follows: [35]

“The first thing that I would note is that when this evidence was given, the accused apparently did not perceive it to be so problematic as to require that the application made this morning be made in a rather more timely way. I accept, of course, that the evidence came out in three distinct references given over two days and that it was arguable that it was only at the point at which the third reference was made that the question of incurable prejudice might be considered to arise.

But even accepting that, if this evidence was so vivid, so significant as to be ‘indelibly etched’ on the memory of the jury, one might have thought that it would occur to counsel at the time that the third piece of impugned evidence was given that that was the effect of it, and an application made at about that time.”

35. Interlocutory judgment, p 4.

  1. This was not a criticism of counsel: it was an inference drawn by the judge from the conduct of counsel, not that he was dilatory, but rather that his initial impressions did not accord with his later complaint. The judge had formed a similar view herself, at the time the evidence was given. There is no doubt that the impression of the trial judge who hears the evidence and is conducting the trial is a significant consideration on appeal. [36]

    36. See, e.g. Crofts at pp 440-441; Miller v R [2015] NSWCCA 206; 252 A Crim R 486 at [126(5)].

  2. Further, the judge did not accept that Ms Lee’s “utterances were deliberately made to malign the character of the accused”. [37] Issue was taken with this assessment in the written submissions for the appellant. Counsel contended: [38]

“The statements could have [?] no other conclusions [than] that the witness was seeking to malign the character of the accused, paint herself as honest and a victim of circumstances.”

37. Interlocutory judgment, p 5.6.

38. Appellant’s written submissions, par 20.

  1. This submission was not founded on any plausible reading of Ms Lee’s evidence. No doubt Ms Lee had a certain view of the characters and propensity for violence of the appellant and his wife, which she identified, but only in response to questions where she was asked for an explanation of her conduct towards them. That conduct included visiting their unit on the afternoon in question, and explaining why she had told lies to the police and others investigating the stabbing, statements which were in effect protective of the appellant. In her evidence, she referred to him as “Ian” and stated that most of her conversation whilst at the unit that afternoon was with him. Mr Ward, whom she had not previously met, was abusive of both her and Ms Coghlan and the appellant, at the women’s requests, commented on Mr Ward’s conduct. It is difficult to draw any intention to malign the appellant from Ms Lee’s evidence.

  2. Indeed, the statements which were adverse to the appellant did not have the effect of painting Ms Lee as “honest” or as a victim of circumstances. She no doubt considered herself a victim in that, on the afternoon of her birthday, she had witnessed a man being stabbed, ultimately fatally. Whether or not that occurred whilst she was sitting on the couch beside him, her response was undoubtedly genuine and plausible. The trial judge dealt with similar submissions in the following terms: [39]

“If, for example, one goes to the first portion of the transcript which is raised, [at transcript, p 140], although the answer to the question might have seemed at first blush to be unresponsive, in fact it is responsive from a witness whose overall evidence seems to have been that she attended the apartment of her neighbours not because of a wish to socialise with them, but because she thought that she should not irritate or upset them. So, in that sense her evidence was not unresponsive, it was simply an answer that was not sought, and which was unhelpful [to the accused].

The same is true of the evidence she gave [at transcript, pp 205 and 209]. She was being questioned in the first instance about her view of the premises and, in the second instance as to, again, why she was at the premises, and it seems clear that Ms Lee saw as relevant to a full and truthful answer to those questions to raise her fear of the accused. Again, the answer is not unresponsive, it was simply an answer which was not sought, and which is unhelpful.

I did not see anything in Ms Lee’s presentation that caused me to think that she was a witness deliberately intending to do damage to the accused. Indeed, she said on occasion, in a way that I thought was entirely genuine, that she had absolutely no wish to be in court giving evidence, and there was some doubt between 2 and 3 November whether she would in fact return to complete her evidence, such was her unwillingness to be a witness. So, I consider the court can set aside [the suggestion] that this evidence was a deliberate attempt to prejudice or harm the accused. I think the court can also set aside any conclusion that it was a deliberate attempt to admit inadmissible evidence. Ms Lee would not likely have a clue what was admissible and what was not admissible.”

39. Interlocutory judgment, p 6.

  1. That description and the conclusions drawn by the trial judge accord with the impression conveyed by the transcript, and especially the passages set out above. A third matter identified by the trial judge, undoubtedly correctly, was explained as follows: [40]

“The real question, it seems to me, is whether this evidence is of such a nature as to irretrievably prejudice the accused’s trial so that he could not receive a fair trial and, in my view, the answer to that question is, ‘no, the evidence is not of such a character’. It is, as I have described it, unhelpful. It was not evidence which was sought. It is not evidence which, in a general sense, is inadmissible. But, it is not unusual that a witness at trial will give evidence that counsel was not expecting and did not want to emerge. Witnesses do not give evidence from a written script. One cannot predict what they will say and occasionally they say something one would rather they had not. But, that does not mean that a trial affected by such evidence will be irredeemably unfair.”

40. Interlocutory judgment, p 7.

  1. Assuming for present purposes that the evidence might have been excluded had objection been taken, the context, set out above, confirms the judge’s conclusion that the evidence was responsive to the questions asked. The explanation with respect to the first passage given by the trial judge was sufficient. The second statement might have been considered as an explanation for her denial, but it came in response to a question suggesting that she did not see what had happened because she was not sitting on the couch. The explanation that she kept her back to the wall because “Ian and Katrina have got a reputation of hurting people” went further than the immediate question required, and the judge intervened to say, “just try to answer the questions”. There was, however, a consistency in her evidence that she did not trust the appellant or Ms Coghlan: her lack of trust was relevant to the suggestions pressed in cross-examination, and it is difficult to accept that her reasons for mistrusting them would not be expressed in some form.

  2. The explanation of her fear of being robbed was a response to an open challenge to her mistaken evidence that she did not take her phone to the apartment. [41] Having obtained the concession that she was mistaken, counsel, by the very next question, at least implicitly invited an explanation as to why she had made a false statement in earlier evidence. In effect she repeated, with consistency, her earlier explanation that she was scared of the appellant and his wife.

    41. Tcpt, p 209.

  3. The remainder of the interlocutory judgment considered possible solutions to the “problem of the evidence as it was given”, namely, to redact the transcript which was provided to the jury and to give a direction concerning their use of evidence of reputation. In considering whether redaction would be effective, the judge reasoned: [42]

“The jury have not yet had the transcript. They have not been reminded of this evidence in a written form, and if they are provided with a redacted transcript, they never will be. That will mean that all the jury will have is such of the evidence as they, firstly, heard and, given Ms Lee’s rapid and sometimes rather tumbling manner of speech, that is not necessarily certain; secondly, that they remember; and, thirdly, that they view the evidence as prejudicial.”

42. Interlocutory judgment, p 8.

  1. Turning to the question of directions, the judge noted that there were not only the three glancing references to reputation for violence, but also extensive evidence of drug use which needed to be addressed. She continued:

“Proceeding on the basis that the jurors did [hear the evidence and take in its potential significance], it seems to me that when giving the jury a direction concerning the evidence of the accused’s use of the drug methylamphetamine it will be open to the court to also give them a short direction, in fairly confined terms so as not to remind the jury of the content of the evidence, but simply to say something along the lines of, ‘Ms Lee had made reference to the reputation of the accused. That evidence is not relevant and should not be considered and, in any event, as with evidence of drug use, it really was evidence which should be viewed only as part of the general background of the matter and the jurors should take care not to allow it to prejudice their minds against the accused’.

I take the point that references to robberies might be viewed by some as more serious than reference to drug use. But, without reminding the jurors of the terms of that evidence I think it is fairly unlikely they would have caught the significance of it or dwelt upon it or been prejudiced in the way that [counsel for the accused] suggests they will. A fair trial is not necessarily a perfect trial. Trials are activities of human endeavour and they, in those circumstances, would rarely be perfect, if ever. This will not be a perfect trial. However, there are measures open to the court in circumstances where the evidence was given fleetingly, in the context of much more significant evidence, where the jury will not have a transcript of it to be reminded of the content. It is by no means such prejudicial evidence that the court cannot cure any prejudice that might arise.”

  1. Having had regard to the whole of Ms Lee’s evidence, that reasoning is entirely persuasive. That is not to say that the jury would necessarily have believed all of her evidence: that assessment must await a consideration of the evidence given by the appellant in his own defence and the evidence of the forensic pathologist. However, it may be noted at this stage that the appellant himself gave evidence of having stabbed Mr Ward in the abdomen. In other words, the serious act of violence which led to Mr Ward’s death was not in dispute. The issue as to whether he acted in self-defence (as he claimed) or acted gratuitously, in the manner described by Ms Lee, was the true issue in the trial. In resolving that issue, the extensive cross-examination of Ms Lee as to why she was in the unit that evening, directed to establishing that she went there to participate in consumption of illicit drugs, not only invited an alternative response, but emphasised the role that illicit drugs played in the lives of the appellant and his wife, as well as that of Mr Ward. If Ms Lee believed that the appellant had a tendency to violence, it cannot have been a significantly prejudicial consideration in the minds of the jury, given the context in which the three passing references were made. Afterall, this was a man, who, on the evidence of Ms Lee, threatened on two occasions to slit Mr Ward’s throat in order to ensure that he did not identify the appellant as his assailant.

  2. The step proposed by the trial judge of redacting the transcript was taken. Further, a careful but constrained direction was given to the jury, placing the evidence of reputation in the same context as the evidence of drug-taking, to which no objection is taken in the grounds of appeal.

  3. One further submission should be noted, in order to be rejected. Counsel for the appellant submitted in writing: [43]

“Further in the evidence of the pharmacologist Michael Robertson, the Crown elicited evidence that the effect of the drugs would be to increase the underlying personality traits of the person taking the drugs and this also had an indirect reference to the redacted ‘reputation’ evidence.”

43. Appellant’s written submissions, par 31.

  1. The proposed connection was fanciful. Dr Robertson gave evidence of the results of an analysis of blood samples taken from Mr Ward, both before and after his death. Several drugs were identified, with their likely effects particularised, having regard to the amounts ingested and the time since they were ingested. He referred generally to the effects of methylamphetamine, stating that it was “possible that agitation and aggression could manifest in someone with underlying aggression”. [44] He suggested that “behavioural controls are, in effect, stripped away, and people do things that they would otherwise not do [if] they were sober or unaffected by drugs, similar to alcohol”. [45]

    44. Tcpt, p 250(20).

    45. Tcpt, p 250(30).

  2. If the jury drew any inference from that evidence in relation to the conduct of the appellant, it might have been that he lashed out violently (as he did) without any real belief in Mr Ward having threatened him. The relationship with some abstract reputation for violent behaviour was not, in the circumstances, significant.

  3. Reading the transcript of Ms Lee’s evidence supports, without qualification, the assessment made by the trial judge. Viewed in the context of the trial, the impugned evidence was not capable realistically of affecting the jury’s verdict. Accordingly, it did not give rise to a miscarriage, as explained further below in addressing ground 1.

Expert evidence

  1. As noted above, a forensic pharmacologist, Dr Robertson, was called to give evidence with respect to drugs found in the blood of Mr Ward. Cross-examination on behalf of the accused sought to establish the effects of methylamphetamine, Xanax and Rivotril on a person, in combination with alcohol, although no alcohol was found in Mr Ward’s blood. [46] Dr Robertson gave careful evidence, in response to general questions as to the nature and effect of the various drugs. As to the combination of methylamphetamine and Xanax, he concluded that “you end up with ultimately a stimulated disinhibited person”: [47]

“So they’re stimulated because of methylamphetamine and they’re disinhibited, a little bit like alcohol, where the first place in the brain that these inhibitors or these depressants affect, are our inhibitory centres, so you get a rebound euphoria. In effect, two negatives make a positive and so you get euphoria, relaxation, all the reasons people might drink alcohol or take Xanax or etizolam which is why they are also misused. So you end up with a stimulated disinhibited person, so someone that’s willing to take risks and do things that they might otherwise [not?] do and you combine that with someone that feels confident and energetic and it’s a combination that we’ll often see in people that take both of those drugs.”

46. Tcpt, p 244(8).

47. Tcpt, p 253(30)-(40).

  1. This evidence was adverted to, though quite briefly, by counsel for the appellant in his final address to the jury. The evidence was that the appellant had taken methylamphetamine, but was not as affected as Mr Ward. There was, on the basis of Ms Lee’s evidence, no suggestion that the appellant, prior to producing the knives, had been aggressive; but the evidence of Dr Robertson was relied upon by the defence to contend that it was likely that Mr Ward, being erratic, had been aggressive towards the appellant. Counsel said of Dr Robertson’s evidence: [48]

“Dr Robertson said … that the typical effects of a person under the influence of methylamphetamine may have increased confidence, profound feelings of wellbeing, they can get hyperactive and jittery, it speeds everything up, risk taking, because you feel good about the world, good about yourself. There is a range of things which are both positive and negative.

So, the evidence given by Mr Conway is that he had seen a lot of the conduct by the deceased, the erratic and at times apparently irrational conduct. So, at the time of the stabbing it’s against that backdrop that the deceased moved towards Mr Conway, was stepping towards Mr Conway holding the knife.”

48. Tcpt, p 377(20).

  1. The other expert called in the prosecution case was Dr Harding, the forensic pathologist. The critical evidence that he gave, for present purposes, was that the “tract of the stab wound was front to back in a near horizontal plane”. [49] At the end of his examination the prosecutor asked: [50]

“Q.   A version has been put to that witness [apparently Ms Lee] that the injury was sustained when the deceased was standing and the accused was standing near each other, and it was at that time that the knife was thrust into the abdomen. Is there any finding that says whether that is consistent or inconsistent or could be excluded?

A.   I have no evidence of post-mortem examination to, to comment with regards to positioning of the alleged [accused ?] and the deceased.”

49. Tcpt, p 268(22).

50. Tcpt, p 276(30).

  1. In cross-examination, counsel for the appellant sought to raise a doubt as to the accuracy of the description of the wound as 24mm in depth, and had the witness confirm, without elaboration, that the direction of the wound was “horizontal”. He did not seek to press upon the witness the likelihood that the deceased was standing at the time the wound was inflicted. In addressing the jury, counsel noted that the wound was “in a horizontal plane” and submitted that it was unlikely that the wound occurred whilst Mr Ward was seated on the couch. [51] A later reference to Dr Harding’s evidence dealt with the depth of the wound as suggesting it was inflicted with limited force behind the knife. [52]

    51. Tcpt, p 369(25), (33).

    52. Tcpt, p 381(30)-382(20).

Evidence of the appellant

  1. The appellant gave evidence that he had placed a kitchen knife on the coffee table in front of Mr Ward. He said that he did it at a time when Mr Ward was looking for his drugs and, when he could not find them, complained, implying that he had been robbed.

  2. The appellant gave evidence that he had been talking about boxing gear with Mr Ward: [53]

    53. Tcpt, p 306(20).

“Q.   What was that discussion about? Who said what?

A.   I can’t remember exactly, but I remember I ran upstairs and grabbed the pads while he was having a punch with me and stuff. Like, I was holding the focus pads while he was punching.

Q.   When that was happening, was Chris being aggressive?

A.   Not really at that time, no.

Q.   Were you feeling aggressive.

A.   No, no.

…

Q.   At some point of time, did Chris start getting upset about anything?

A.   Yeah, he couldn’t find his drugs.

Q.   What was he saying about that?

A.   I think he went to have some more and he couldn’t find it. He was just asking, like, who went over near him and that stuff. Just said, yeah, he asked if we had it.

Q.   How would you describe Chris’ demeanour at that stage?

A.   He was starting to get angrier.

…

Q.   When you say he seemed to be angry, what did you see?

A.   He was just getting frustrated. Like looking for his – in his bag and looking around for his stuff.

Q.   Did he accuse anyone of anything in that regard?

A.   Yeah, he thought we might have had it.

Q.   Sorry?

A.   He thought we might have had it. He asked if we had it.

Q.   Did he make any threats at that stage?

A.   He said something about, I don’t know stabbing someone or something.

…

Q.   So what happened next?

A.   Well I was trying to, like, say that I didn’t have it, so I went, I don’t know grabbed a knife out of the kitchen and put it on the coffee table in front of me and said to him, ‘Well if you’re going to stab me, stab me. I’ll fight you with my hands’.

…

Q.   How did Christopher Ward react? Did he say anything in return to what you said?

A.   No, he just said, ‘No, I’m right. I don’t want to’ – I can’t remember exactly. He didn’t want to, didn’t want to, to fight. He just said he was more worried about his, like, just wanted to find his drugs.”

  1. The appellant then gave evidence that he went into the garage. His evidence continued: [54]

“Q.   Do you recall what you did in the garage when you went there?

A.   I don’t know. I was just looking to see what, like before, you know when he was going through his shit. I was just seeing that everything was there still and that.

…

Q.   What happened next?

A.   From what I can remember I come out and he, he was saying he still hadn’t got his drugs, and, well I was, like we had it, and then I said, ‘Oh well I haven’t got them’. And then yeah, and then he’s just jumped up, got up and grabbed the knife and come at me. So I just grabbed the knife off that was hanging on the door and I, I stabbed him as he come towards me.”

54. Tcpt, p 309(45)-308(50).

  1. The appellant said that the knife had been hanging in a sheath on the back of the garage door. He was then questioned about how Mr Ward approached him: [55]

“Q.   At the time that Mr Ward was moving towards you, you said he was holding something?

A.   Yeah.

Q.    What was that?

A.   He picked up a knife off the coffee table.

Q.    How did he walk towards you?

A.   He just – I don’t know. He just come at me with his hands like holding – down by, by [his] side like that.

The judge, with his concurrence summarised what the appellant was demonstrating: “That’s just with your right hand slightly extended from the body – with a straight – slightly bent arm – close to the thigh – fist clenched.”

55. Tcpt, p 313(5)

  1. His evidence continued:

“Q.   Do you recall him saying anything at that time?

A.   No, not really. Not, not as he was walking towards me, he didn’t.

Q.   As he’s walking towards you, where were you positioned?

A.   Near the – just in the doorway, just near the – where the white door is.

Q.   Inside the lounge room or inside the garage?

A.   Just sort of right, right on the out, just on the, just on the – right at the doorway, where the doorway is.

Q.   Did you make any observations as to Mr Ward’s demeanour as he walked towards you?

A.   No, I, I just turned around and grabbed it, grabbed the knife and by that – as I turned around, he was like not far away from me and I just went like that.”

  1. He gave a demonstration indicating a right hand extended for about 50 cm, with the blade held flat. [56] He was then asked: [57]

“Q.   Why did you do what you’ve just told us you did with the knife?

A.   I don’t know. I guess I thought he was going to stab me.”

56. Tcpt, p 314.

57. Tcpt, p 315(15).

  1. In the course of cross-examination, he was asked about taking the knife from the kitchen and placing it in front of Mr Ward: [58]

    58. Tcpt, p 329(35).

“Q.   What did you challenge him to do at that time?

A.   I said, ‘I’ll use my fists, you can use the knife’.

Q.   So you were challenging him to a fight with him using a knife and you unarmed?

A.   Yeah. I was hoping that I’d just call his bluff, you know what I mean. He realised that he’s being a dickhead.

Q.   Now at the time, even though you were on ice, you knew he was very well affected by ice, didn’t you?

A.   Yeah.

…

Q.   So you’ve got this 127 kilogram man who’s very high on ice and you’re giving him a knife?

A.   I don’t know. Just he was threatening me, I thought I’d just (not transcribable)… just thought I’d call his bluff. I was hoping he was bluffing, so yeah.”

  1. The appellant was cross-examined for some time as to why he had left the premises and told the police that some other person must have stabbed Mr Ward. He was asked why he had picked up the knife which Mr Ward had dropped on the ground and replaced it in the knife block, and left the knife with which he had stabbed Mr Ward on the side of the sink in the kitchen. The appellant was unable to recall whether he put the knife near the kitchen sink where the police found it, stating, “I don’t know if I put it there or not” and “I don’t remember a hundred per cent”. [59]

Grounds of appeal

59. Tcpt, pp 352(43), 353(5).

Discharge application

  1. The view expressed above that the prejudicial statements made by Ms Lee would not have deprived the appellant of the possibility of an acquittal is confirmed by the subsequent history of the trial. The central issue was whether the evidence of the appellant might have raised a reasonable doubt in the minds of the jury as to the account given by Ms Lee. That is implausible for a number of reasons. First, on the appellant’s own evidence, when accused of ripping off a friend by stealing his drugs, he picked up a knife and offered it to the friend while saying he would fight him with his bare hands. Secondly, on his own account, when his friend picked up the knife and approached him, he immediately grabbed a knife himself and struck the first (and only) blow in circumstances where he could not describe any direct threat or menacing statement or conduct. Thirdly, he gave evidence that he himself had been stabbed in the past and “it’s just not nice”. [60]

    60. Tcpt, p 316(28).

  2. Fourthly, it is most unlikely that Ms Lee’s comments about the appellant’s reputation for violent conduct affected the jury’s assessment of his account of the stabbing. On the one hand, it was itself a violent act; on the other hand, it was taken in response to an implicit threat by a man carrying the very knife which the appellant had earlier placed in front of him with an invitation to use it on him, whether the invitation was a bluff or otherwise. Rather, the jury would almost certainly have been focused upon the plausibility of the two accounts, as to which something more will be said in considering ground 2.

  3. Fifthly, the jury were given a firm direction by the trial judge in terms to which no objection was taken at the trial, or on appeal. There were, indeed, several factors which the judge identified in directing the jury to act “impartially, dispassionately and fearlessly”. [61] That direction too must be read in context and the relevant part of the summing up read as follows: [62]

    61. Summing up, 08/11/22, pp 6-7.

    62. Summing up, pp 7-9.

“You have to set aside emotional considerations and decide the case upon the basis of a logical and rational assessment and consideration of the evidence placed before you.

Everyone acknowledges that it can be difficult to do that, particularly in a murder trial, where someone has died. A man has lost his life and others, those who loved Mr Ward, have lost someone they cared about. No doubt his death led to great grief and great distress amongst members of his family.

I am sure you found the footage that was filmed by Senior Constable Woodcock, the body-worm camera footage from the night of 7 March, I am sure you found that very difficult to watch. We saw and heard Mr Ward clearly seriously injured and in considerable pain, and it is difficult to watch that sort of visceral footage and not feel affected emotionally by it. All of us in the courtroom would have felt some level of emotion about what we saw. All of us would feel sympathy for Mr Ward, sympathy for his family and others who loved him and who have suffered.

You may well have felt considerable sympathy for the accused. We heard he has been placed in the very distressing position of losing his wife in the course of these proceedings, and obviously, that would have been an extremely difficult thing for him to have to face, and I am sure we all felt sympathy for him and for his loss. But, those considerations of sympathy and emotion must be set aside by you. …

You must also, members of the jury, put aside any prejudice that you might feel. That is as important as setting aside considerations of sympathy. We have heard some evidence in the course of the trial that might have led you to the view that the accused is, or was at the time, a person who used illegal drugs and who moved in circles or had friends who also used illegal drugs. You might have a view that that sort of drug use is quite unacceptable. It is, after all, against the law, and you may take a dim view of that sort of conduct.

If so, you must also acknowledge that view and then put it aside ….

Ms Lee gave some evidence as to what she believed to be Mr Conway’s reputation. That was something she was not asked about and what Ms Lee thought about Mr Conway’s reputation, or indeed the reputation of his wife, is just not relevant. It is not relevant evidence to determining the question of whether the Crown has proved Mr Conway’s guilt of the charge. So, put aside any references she made to the supposed reputation of Mr Conway. Put it entirely aside and do not allow that to prejudice your analysis of the evidence.

You must not allow that evidence of drug use or reputation to prejudice you against the accused in any way, or wrongly influence you when you are considering your verdicts. …”

  1. The direction was unequivocal, and did not repeat or otherwise draw attention to the detail of Ms Lee’s evidence as to the appellant’s reputation. In the context of the other matters about which the jury were properly warned, the reputational evidence was of little, even minimal, significance. It did not give rise to a miscarriage in the trial. For these reasons, the application of the proviso with respect to a possible miscarriage of justice, relied on by the Director in this Court, does not arise.

Unreasonable verdict

  1. Ground 2 alleged that the verdict was unreasonable or unable to be supported having regard to the evidence, under the first limb of s 6(1) of the Criminal Appeal Act. This ground requires that the court form its own view, based upon an independent assessment of the evidence as to whether it entertains a reasonable doubt because, if it does, it is a doubt which a reasonable jury ought to have experienced. [63] However, if the court has such a doubt, it must also consider whether it is one which the jury, having had the benefit of seeing and hearing the witnesses, could properly have resolved. If there is some inherent unreliability affecting the prosecution case, the doubt will remain one which the jury should have entertained.

    63. M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493.

  2. The prosecution case turned on acceptance of the evidence of Ms Lee. The assessment required by ground 2 must commence with her evidence.

  3. First, there were aspects of the account given by Ms Lee which may have seemed implausible, but which were not in fact disputed by the appellant. One such fact was the placing of a knife near or in front of Mr Ward, with an invitation to use it against the appellant, either mucking around or as a bluff. There were differences as to whether the knife was placed on the coffee table in front of Mr Ward, or on the arm of the couch on which he was sitting at the time. There was not, however, a dispute that he was in fact sitting on the couch when the knife was offered to him. Nor was there any dispute that the appellant at some stage armed himself with another knife. On Ms Lee’s account, he had two knives at the time that he placed one near Mr Ward; on his account, he took the second knife in his hand only after being approached by Mr Ward who was holding the first knife.

  4. Secondly, Ms Lee’s evidence was not that the appellant behaved aggressively or abusively towards her; rather, she said that he engaged in conversation with her and that it was Mr Ward who made offensive comments about the appellant’s wife and about Ms Lee herself. The appellant agreed that they had asked him to tell Mr Ward to stop such behaviour. Ms Lee gave evidence that, although they were close neighbours, they hardly knew each other. It was Ms Coghlan who had invited her to the unit. However, it was common ground that the appellant had blood on his shirt and had asked Ms Lee to wash it for him, which she did. Furthermore, it was Ms Lee who insisted that the appellant leave the premises immediately because the police were coming. At that stage she said that he was panicking, a judgment with which he agreed. (He did not agree that he had threatened to slit Mr Ward’s throat to stop him “dobbing”.) This evidence did not support the submission that Ms Lee had some animus towards the appellant, or that she was seeking to minimise her own involvement.

  5. Thirdly, although there were various attacks on Ms Lee’s character and involvement in the events of the evening of 7 March and the following morning, there was no plausible basis for implying a motive to harm the appellant. Both had been involved in lying to the police in the immediate aftermath of the stabbing and Mr Ward’s death, but the explanation for that in the appellant’s case was, as he later accepted, that he was the person who had thrust the knife into his friend’s abdomen. Ms Lee’s lies had been protective of the appellant. Her account in evidence was detailed and her cross-examination was extensive. So far as it is possible to judge such things from the transcript, her evidence was consistent and plausible. She was clearly affected by having to recount in detail the traumatic events of the evening which resulted in the death of Mr Ward.

  6. By contrast, the appellant’s evidence was sparse as to detail and barely plausible. On his account, Ms Lee was not in the room when the confrontation with the knives took place. He denied that she was on the couch beside Mr Ward when he (the appellant) sought to engage with Mr Ward and placed a knife in front of him. Further, his account of Mr Ward approaching him in a manner which led him to strike him with a knife was manifestly lacking in detail. He did not suggest that Mr Ward said anything to him or that he noticed anything threatening about his demeanour. Even the way in which he described him holding the knife was at least in part passive.

  7. Reading the whole of the evidence, I do not entertain a reasonable doubt as to the prosecution case. The jury might have disbelieved key aspects of Ms Lee’s evidence, but clearly they did not. The appellant’s evidence does not raise a reasonable doubt as to the truth and reliability of the evidence of Ms Lee. Again, it may have been open to the jury to accept the possibility that the appellant was telling the truth, but clearly they did not. Ms Lee’s evidence was not inherently implausible, or inconsistent with objective facts. It is not necessary to consider whether there is some doubt arising from the evidence which might be resolved by the jury in favour of conviction. Ground 2 must be rejected.

Conclusion

  1. The appellant should have leave to appeal, but the appeal must be dismissed.

  2. CAVANAGH J: I have had the benefit of receiving the judgment of Basten AJA. I agree with the orders which his Honour proposes for the reasons his Honour sets out. I am satisfied that the evidence about which the complaint is made did not lead to a miscarriage. Further, I have carried out my own independent review of the record and I am satisfied that the verdict was open to the jury. There is really no basis on which it could be concluded that the jury ought to have had a doubt about the applicant’s guilt such as to set aside the verdict.

  3. DHANJI J: I agree with Basten AJA.

**********

Endnotes

Decision last updated: 20 October 2023

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Crofts v The Queen [1996] HCA 22
Crofts v The Queen [1996] HCA 22
Crofts v The Queen [1996] HCA 22