Elias Herodotou v The Queen

[2018] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0175

ELIAS HERODOTOU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2018
DATE OF JUDGMENT:	4 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 253
JUDGMENT APPEALED FROM:	DPP v Herodotou [2017] VSC 178 (Hollingworth J)

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CRIMINAL LAW – Appeal – Conviction for murder – Applicant inflicted fatal stab wound to deceased’s neck during violent altercation – Numerous other stab wounds also inflicted – Whether verdict unsafe or unsatisfactory – Whether infliction of fatal wound conscious, voluntary and deliberate act – Mens rea – Whether substantial miscarriage of justice occurred by reason of both intentional and reckless murder having been left to the jury – Whether change in prosecution case gave rise to substantial miscarriage of justice –Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC	Christopher James Lawyers
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
KAYE JA

WEINBERG JA:

1. After a trial lasting some 16 days, the applicant was convicted of the murder of Darren Webb.  He now seeks leave to appeal against conviction.  He relies on three proposed grounds, which are as follows:

Ground 1:  the verdict was unsafe and unsatisfactory in that:

(a)The evidence could not sustain an inference that the fatal injury was inflicted by a conscious, voluntary and deliberate act.

(b)The evidence could not sustain an inference that the applicant had the relevant mens rea.

Ground 2:  A substantial miscarriage of justice occurred because her Honour left intentional murder to the jury.

Ground 3: A substantial miscarriage of justice occurred because of the changes in the Crown case.

1. During the course of oral argument, counsel for the applicant heard the Court express some disquiet about the fact that ‘reckless murder’[1] had been left to the jury in a case such as this.  In his reply, he foreshadowed an amendment to ground 2.  This would have enabled him to argue that the trial had miscarried, not because the judge had left ‘intentional murder’ to the jury, as ground 2 presently asserts, but rather because the judge had left reckless murder as well as intentional murder.

   [1]‘Reckless murder’ means foresight on the part of the accused of the probability of death or really serious injury.  See La Fontaine v The Queen (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464.

1. The Court did not, at that stage, rule upon that application to amend ground 2.  However, it heard argument regarding the matter and indicated that it would rule upon the question raised when it delivered its reasons for judgment. 

1. For the reasons that follow, we would grant leave to amend ground 2, but refuse leave to appeal on that ground, and all other grounds.  

Background facts

1. Early on the morning of Sunday 5 July 2015, a fight occurred in a hotel room at the Crown Hotel.  Mr Webb, the deceased, had rented that room on the previous day.

1. Throughout the preceding Saturday, Mr Webb and two women, Blaze Williams and Jade McIntosh, had socialised at Ms McIntosh’s flat in Coburg.  They had drunk heavily, smoked methamphetamine and used other drugs.  Mr Webb and Ms Williams had engaged in some sexual activity.

1. Separately, the applicant had spent the afternoon with a friend, Christina Presti.  They had used drugs over a period of some hours.

1. The applicant met up with Ms McIntosh, Ms Williams and Mr Webb at Ms McIntosh’s flat at around 9.30 pm on the Saturday evening.  It was apparent that relations between the applicant and Mr Webb were far from amicable.  The applicant believed that Mr Webb disliked him because a girl, known to them both, had allegedly told Mr Webb that the applicant had raped her.  It was common ground at the trial that there was nothing to suggest that that allegation was true.

1. Whilst at the flat, the applicant and Ms Williams had sex in Ms McIntosh’s bedroom.  They had left the door partly open, meaning that others could see and hear what they were doing.  Mr Webb became increasingly agitated and upset about this.  He picked up a pair of scissors and put them down the back of his trousers, telling Ms McIntosh that he wanted to cut off the applicant’s ‘dick’.  She managed eventually to calm him down.

1. At about 10.45 pm, Mr Webb, Ms McIntosh, Ms Williams and the applicant all left the flat and drove off in Mr Webb’s car.  Mr Webb asked the applicant where he would like to be dropped off, as they were heading for the Crown Hotel.  At that point, Ms Williams said she would not accompany Mr Webb to the hotel unless the applicant came with them.  

1. Whilst in the car, the applicant brought up the rape allegation.  Mr Webb told him that he did not believe it to be true.  Clearly, however, it was preying upon the applicant’s mind.

1. At about 11.30 pm, Mr Webb parked in the underground carpark of the hotel. He then, unexpectedly, got out of the car and walked off.  The applicant, Ms Williams and Ms McIntosh remained in the car.

1. About an hour later, whilst still seated in the car, Ms Williams remembered that she had Mr Webb’s hotel room key.  She took the applicant with her up to that room. Ms McIntosh, by this stage, had decided to go home.  

1. At about 2.00 am, Mr Webb entered the hotel room.  There, he discovered Ms Williams and the applicant both naked.  He saw at once that his methamphetamine had been removed from the hotel safe, where he had left it.  He also saw that a considerable amount of food had been ordered and delivered to the room. He expressed anger towards the applicant, voicing his displeasure loudly.  The applicant responded in kind. The applicant again brought up the rape allegation.

1. At that point, the applicant punched Mr Webb at least twice to the face, once to the jaw and once to the nose.  The two men then wrestled and jostled each other, moving back and forth across the room.  At one point during the struggle, they moved past the bar fridge area where the applicant had previously placed his pocket knife.  He had left it there after using it to prepare drugs.

1. The applicant’s evidence on this point, which was unchallenged by the prosecution, was that whilst the two men were struggling, he saw Mr Webb reaching for the knife.  However, he had managed to get hold of it first.

1. There was no dispute about the fact that the applicant then inflicted a significant number of knife wounds to various parts of Mr Webb’s body.  Some of these wounds were relatively shallow, while others, including in particular the fatal wound to the neck, were deeper.

1. The evidence concerning the fatal wound was that it penetrated Mr Webb’s neck for a distance of about six centimetres, passing through a considerable body of tissue, and ultimately severing, in part, his carotid artery.

1. The fight ended when Mr Webb, having just received the fatal wound, moved towards the door to the room and slumped down in an alcove.  When the ambulance officers arrived a short time later, he was dead.

The Crown’s evidence at trial 

1. The evidence as to what took place in the period immediately leading up to the infliction of the fatal wound came from several distinct sources.  In particular, there was direct evidence from Ms Williams, who was present throughout the fight, as to what occurred.

1. Apart from this direct evidence, Dr David Ranson, the pathologist who conducted the autopsy of Mr Webb, outlined in detail the various wounds that he had sustained, and upon which the prosecution case heavily rested.

1. In addition, Senior Sergeant Bradley Mason of the Forensic Sciences Centre, who was a specialist in blood stain pattern analysis, gave evidence that was essentially uncontentious, but confirmed Ms William’s overall account of how the struggle had played out.

1. As will be seen, there was also some evidence led from Ms McIntosh and Ms Presti concerning what the applicant did, both before and after the fatal event at the hotel.  This evidence was led largely as to context, but was said to be relevant to the inferences that could be drawn from what was, in part, a circumstantial case.

Blaze Williams

1. Ms Williams was present in the hotel room throughout the entirety of the fight between the applicant and Mr Webb.  Although it was understood that there were problems associated with the reliability of her account of what took place (in part, at least, because she had been using methamphetamine), she was generally accepted by both sides as a truthful witness.

1. She described Mr Webb’s anger upon entering the hotel room, when he discovered that the applicant had used his drugs.  That annoyance was heightened by the fact that a considerable amount of money must have been expended on Mr Webb’s credit card tab in ordering room service.

1. Ms Williams spoke of Mr Webb having yelled loudly, shortly after entering the room.  According to her, this prompted a direct confrontation between the applicant and Mr Webb.  The applicant was the first to use physical force.  He was seen by her to punch Mr Webb, at least twice to the face.

1. She then described some aspects of the struggle between them.  She said that both men grabbed each other and wheeled back and forth around the room.  At one point Mr Webb had pushed the applicant backwards.  She, herself, had intervened, striking Mr Webb with an open hand in an effort to get him to release the applicant from his grip.  She could not recall having seen the applicant pick up the knife.

1. Concerning the stage at which the fatal wound was inflicted, she described Mr Webb as having moved forward, and the applicant as having gone backwards.  She saw the applicant with his back toward the door to the room, and Mr Webb facing it.  She said that Mr Webb was the larger of the two men, though she was confused about his actual height.  She saw the two men hunched over.  Even at that stage, however, she did not see the knife.

1. It was only towards the very end of the fight that she glimpsed the knife for a brief instant.  The applicant had it in his right hand, which, in turn, was being gripped by the left hand of Mr Webb.

1. Ms Williams did not see the act inflicting the fatal wound.  However, she did see the aftermath, that being a large quantity of blood.  Mr Webb then slumped down in an alcove, near the door.  The applicant threw him a towel, which he put to his neck in an effort to staunch the bleeding.  The applicant walked away to the other side of the room.

1. Ms Williams said that the applicant was, at that stage, standing and looking at his phone.  She asked him if they should call an ambulance.  He replied, ‘fuck him, he’ll be alright, I know first aid’.  The applicant also said that he knew someone that he could call, and told her not to call an ambulance.

1. Eventually, the applicant allowed her to call 000, using Mr Webb’s phone.  He had cut the telephone cord to the phone in the hotel room, so that it could not be used.  The applicant left the scene before the ambulance officers had arrived.

Dr David Ranson

1. As indicated, Dr Ranson, the pathologist who conducted the autopsy, gave evidence.  He described the various injuries that had been inflicted upon Mr Webb.  He said that there were, in total, about 19 injuries, with perhaps some 14 or so separate incised or stab wounds.  In some cases, multiple injuries could have been caused by a single act with the knife. 

1. Dr Ranson said that apart from the fatal injury to the neck, there were a number of relatively shallow incised wounds.  Some of these appeared to have been inflicted at a time when Mr Webb was moving.  He explained that the shape and nature and the injuries indicated ‘dynamic movement’.

1. We have grouped the incised wounds described by Dr Ranson into several categories and ourselves numbered them for convenience.

1. First, there were a number of wounds to the legs and lower torso.  They included the following:

1.An incised or cutting wound, some six millimetres in length, in the left thigh, some 15 centimetres below the hip bone.  This was a shallow wound only, and did not penetrate deeply.

2.An incised injury to the front inner thigh, which was also shallow. 

3.An incised wound of a stabbing type which penetrated some two centimetres into the subcutaneous tissue and musculature, to the side of the thigh

4.A stabbing wound to the front of the left shin, extending just into the soft tissue.

5.An incised wound to the front of the right shin, 22 millimetres in length.

1. Dr Ranson said that none of these wounds posed any significant risk of death.  They were all relatively shallow. [2]

   [2]‘Jabbing wounds’ was the language employed by counsel for the applicant in the course of oral submissions.

1. Secondly, there were wounds to the arm and elbow.  Counsel for the applicant acknowledged that these could reasonably be characterised as defensive wounds.  They were as follows:

6.A partly incised, partly abraded, injury to the left arm that was eight centimetres in length, extending over the left wrist towards the elbow.  Injuries of that kind were consistent with the victim having put his arms up in a defensive position.

7.A further incised wound, of a stabbing type, half a centimetre in length, over the back and side of the left elbow.

8.There was a mottled area of patterned bruising adjacent to the incised wound described above.

1. Thirdly, the following wounds were located in the facial region:

9.A T-shaped incision/laceration, with some tearing at the edges, at the side of the right eyebrow, adjacent to the eyelids, about 1.5 centimetres in length.

10.An incised wound, this time situated at the lower edge of the right lower eyelid, adjacent to the nose, and about 1.8 centimetres in length.

11.A superficial incised wound, 5.5 centimetres in length, running horizontally, across the right side of the forehead.  This wound was deeper in its lateral aspect, and more superficial in its medial aspect, so that the shallower parts were towards the centre of the forehead.

12.A patchy zone of bruising over the bridge of the nose, resulting from a fracture to the nasal bone, almost certainly the result of a punch to the head.

13.Further patchy bruising on the left side of the nose, just adjacent to the eyelid, which might have been associated with the injury to the nose previously discussed.  Both sets of bruises stemmed from the application of blunt force.  

14.Further bruising in the region of the left lower eyelid, once again the result of blunt force trauma.

15.Bruising throughout the mid part of the upper lip, resulting in a laceration to the inner side of that lip on both the left and the right sides.  This too, was almost certainly the result of a punch delivered to that part of the jaw.

1. Fourthly, as regards the upper torso or chest area, the following injuries were recorded:

16.An incised wound to the area of the collar bone on the right side, about 1.4 centimetres in length, with a wound track that extended for several centimetres in depth into the underlying muscle and fat, moving downwards in the body, but not actually entering the chest.

17.A small incised wound at the front of the neck, about 4 millimetres in length.  This wound was shallow, not extending beneath the underlying dermis and skin.

18.A small incised wound at the upper part of the back in the shoulder region on the right side.

1. Finally, Dr Ranson came to deal with the cause of death.  He described the following injuries to the neck region:

19.The fatal wound to the left side of the neck, which was a ‘large triangular looking injury’, and which extended through, the wound path, to the right side of the neck for a distance of some six centimetres.

20.At the other side of the neck, a small punctate area of bruising. This bruise-like area represented the end of the wound path created by the fatal neck wound.  It was caused by an internal, rather than external, mechanism and was brought about by damage to the artery on the right side of the neck. 

1. With regard to the fatal wound, Dr Ranson was asked how such a wound might have been caused.  He said that a triangular shaped wound of this kind would commonly be the result of the cutting action on the skin surface changing direction, during the course of the insertion or removal of a sharp object.  This particular wound had passed from the left side of the neck, through the deep tissues, cutting part of the thyroid gland, the larynx, and the upper part of the trachea.  At that point, it had severed half of the carotid artery, which was the main artery in the front of the neck on that side.  This had led to local haemorrhage, displayed in the spot like bruise on the skin, on the right side of the neck.

1. Dr Ranson was asked to comment on the possibility that a knife with a blade of between three and five centimetres in length would be able to produce a wound track of six centimetres.  He said that the tissues tend to compress, enabling that to occur.  He said that depending upon the knife used, more than trivial force would be required to bring about such a wound.  However, it would not require a large amount of force.

1. The cutting of the carotid artery would produce a significant amount of blood.  Dr Ranson was in no doubt that the injury that had caused death in this case was the stab wound to the neck.

1. It was suggested to Dr Ranson in cross-exanimation that the shape of the fatal neck wound had been brought about by some form of movement on the part of Mr Webb.  He replied:

I think there is a relative movement here between the object and the body, which has resulted from a change in the axis of the, or orientation of the axis of the object, as it has gone in and out of the body, and there has probably been a degree of movement of the body with respect to the knife or object, such that it causes a cutting of the side of the main wound.

Senior Sergeant Bradley Mason

1. Crime scene evidence established that there had been a violent confrontation near the front door to the room.  Photographs depicted blood spatter patterns consistent with knife injuries inflicted in the course of a struggle.  Senior Sergeant Mason said that, in his opinion, these patterns were brought about in much the way that Ms Williams had described.  The fatal wound, in particular, had been inflicted close by the door to the room.  

Jade McIntosh

1. Ms McIntosh said that earlier on the night of 4 July 2015, while they were all still at her flat, she saw the applicant playing with a small flick knife, the blade of which was about three centimetres in length.

1. Mr Webb had been very uneasy at that stage.  He showed her a pair of scissors that he had picked up and put down the back of his trousers.  She said that he was getting worked up, and told her that he wanted to cut off the applicant’s ‘dick’.

Christina Presti

1. Ms Presti, who was the friend with whom the applicant had used drugs on the afternoon of 4 July 2015, saw him on the following day.  He told her that he had ‘fucked up’.  He had said, ‘I think I’ve killed someone’.  He spoke about the fight, and said that it had all started because of room service purchases that had been made on Mr Webb’s credit card.  She said that the applicant had appeared to her to be injured.  His knuckles were swollen and he had a split lip.  His left eye was bruised and blackened.

1. Ms Presti said that the applicant told her that during the fight, he had jabbed Mr Webb in the leg a number of times in order to ‘get him off’.  He said that he had been extra careful because he did not want to do any damage.  He said that he knew there was an artery that runs through the leg and for that reason, he was just doing a series of ‘little pricks’.  She asked him whether the wound to the victim’s throat could have been an accident.  He replied, ‘I don’t know, it’s all a blur’.

Dr Caroline Bolt

1. Finally, Dr Bolt, who examined the applicant on 10 July 2015, noted abrasions on his hands, upper arm and legs.  There were no incised wounds of any kind.

The Defence evidence at trial

The applicant

1. The applicant gave evidence in his own defence.  He denied having intentionally stabbed Mr Webb in the neck.  He said that he first realised that Mr Webb had been seriously injured, only after the fight was over.

1. Moreover, the applicant denied having, at any stage, intended to kill or cause Mr Webb really serious injury.  He also specifically denied having foreseen the probability that death or really serious injury might occur.

1. The applicant said that when Mr Webb came into the hotel room, he was yelling at Ms Williams, and the applicant was concerned for her well-being.  He said that this was what had prompted him to strike the first blows by punching Mr Webb to the face.  He said that as the struggle went on, he felt that he was being ‘overpowered’, and forced ‘backwards’.  He claimed that he saw Mr Webb reach for the knife.  He had grabbed it himself, in order to prevent Mr Webb from seizing it.

1. He said that the fight progressed back and forth through the room.  Eventually, the two of them arrived at the door, near the alcove.  His own back was to the door. At that point, they were close together and Mr Webb was ‘hunched over [him]’.  The applicant said that Mr Webb had his right hand around the applicant’s neck.

1. In addition, the applicant said that from the moment that he had grabbed the knife, Mr Webb had hold of his right hand.  He said that Mr Webb was in control of his hand for the majority of the time thereafter.  He did, however, accept that the wounds to Mr Webb’s legs had been deliberately inflicted, at a time when his hand, holding the knife, was momentarily free from Mr Webb’s grip.  

1. The applicant also accepted that the incised injury to Mr Webb’s forehead, had been deliberately inflicted when he was temporarily in control of the knife.  In other words, he acknowledged having consciously, voluntarily and deliberately slashed Mr Webb across his forehead.

1. Save for the stab wounds to the legs, and the slash across the forehead, the applicant denied having deliberately inflicted any of the other wounds to Mr Webb’s body.  That denial extended, of course, to the fatal injury to the neck.

Submissions before this Court

Ground 1

1. As indicated, ground 1 contends that the verdict was unsafe or unsatisfactory.  In support of that ground, it was submitted that there was no evidence capable of sustaining the findings on each of the two elements in issue in this case.  These were whether the applicant, when he inflicted the fatal wound:

(a)               did so by a conscious, voluntary and deliberate act; and

(b)               either intended to kill, or to cause really serious injury, or foresaw the probability of death or really serious injury. 

1. With regard to (a), it was submitted that even if the applicant had some measure of control over the knife at various stages of the struggle, as he himself admitted, it was not open to the jury to be satisfied beyond reasonable doubt that he exercised such control at the precise moment that he inflicted the fatal injury to the neck.

1. It was submitted that the evidence pointed strongly to the fatal wound having been inflicted in the course of a desperate struggle, with Mr Webb at that moment hunched over the applicant, and the knife in contest between them.  Both parties would have been applying force to the knife, though it was being held by the applicant, and his hand was being gripped by that of Mr Webb.  The situation was not made any easier by the intervention of Ms Williams.

1. It was submitted that the knife could have entered Mr Webb’s neck without any deliberate thrust on the part of the applicant.  That would make it simply an involuntary act on his part.

1. It was further submitted that Dr Ranson’s evidence supported this scenario.  In particular, attention was focused upon his concession that the nature and shape of the wound may have been the product of some movement on Mr Webb’s part.

1. Counsel for the applicant commented that the prosecution case at trial was, at least partly, circumstantial in nature.  It depended upon inferences being drawn from the number and nature of the wounds inflicted.  It also relied primarily upon the fact there were a significant number of incised wounds to the upper body area, as well as to the face, in addition to the fatal wound to the neck.

1. It was accepted that there was at least one wound to the area of the rear right shoulder that could not be explained if the applicant’s account were true.  He claimed that he never, at any stage, had complete control over the knife, except when he was jabbing at Mr Webb’s legs, and when he scraped the knife across his forehead.  It would have been impossible, in those circumstances, for the wound to the back of the shoulder to have been inflicted unless the applicant had control over the knife at that moment as well.

1. Nonetheless, it was submitted by the applicant that the inferences for which the prosecution contended at trial, simply could not override a reasonable hypothesis consistent with innocence, namely, that there had not been any conscious, voluntary and deliberate stabbing of Mr Webb to the neck.

1. With regard to (b), similar arguments were advanced in relation to the relevant mental state for murder.  It was submitted that even if the applicant, at some stage, had a measure of control over the knife, and even if this control were sufficient to justify a finding that there had been a conscious, voluntary and deliberate act of stabbing Mr Webb to the neck, it was not open to the jury to infer that this had been done with murderous intent.

1. In support of this submission, counsel for the applicant emphasised that the infliction of the fatal wound occurred in the context of a ‘chaotic struggle’ that had lasted, in total, for about a minute.  He submitted that the struggle had gone through different phases, and that it was difficult to isolate individual actions in a chronological fashion.

1. Counsel noted that, with regard to mens rea, the prosecution case at trial had initially been built around the assumption that the applicant was angry at the start of the fight, and therefore had a motive to kill or seriously injure Mr Webb.  However, as a result of the way in which the cross-examination of the applicant had proceeded, the Crown’s position altered markedly.  Eventually, it was put on the basis that murderous intent may have developed only as the fight progressed.

1. In that regard, the prosecution had once again relied upon the number and nature of the wounds inflicted.  It also relied upon the somewhat callous approach taken by the applicant to Mr Webb’s situation immediately after the infliction of the fatal wound.

1. Counsel for the applicant submitted that neither of these matters were of sufficient weight to ground a finding of mens rea.  Post-offence callousness could not be used to infer murderous intent.

1. The respondent pointed to the fact that the only source of evidence in support of the proposition that the applicant did not, at all times, have effective control of the knife, was the applicant himself.  The evidence of Ms Williams, who only glimpsed the knife for a moment at the very end of the fight, did not necessarily corroborate or otherwise support his account.  There was no reason why the jury, acting reasonably, was required to have accepted the applicant’s version of events, though of course, they might have done so.

1. In support of its argument that it was open to the jury to find that the infliction of the stab wound to the neck had been deliberate, the respondent pointed to the number of other incised wounds that had been inflicted to particularly vulnerable areas of Mr Webb’s body.  These included the incised wounds to the face and upper chest area.  The more of those types of injuries that were present, the less likely it was that the infliction of the fatal wound had been an accident. 

1. In relation to (b), concerning mens rea, the respondent submitted that a finding of murderous intent would almost inevitably have flowed from the conclusion that the fatal wound had been inflicted deliberately.  Once it was established that the applicant had consciously, voluntarily and deliberately stabbed Mr Webb in the neck, the only conclusion that could sensibly be drawn was that this was done with the intention of either killing him, or causing him really serious injury.  That meant that mens rea was really a ‘non-issue’.

Ground 2

1. As previously indicated, ground 2 alleges a substantial miscarriage of justice resulted from the trial judge’s decision to leave intentional murder to the jury.  The ground is expressed in somewhat cryptic and unusual terms, but its meaning was elucidated in oral submissions.

1. In substance, it was submitted that the trial judge ought not to have left both intentional and reckless murder to the jury.  This was said to have been apt to confuse.  Implicitly, it was suggested that the jury might have been tempted to compromise by having two quite distinct routes to conviction left open to them, albeit involving inferences to be drawn from the same set of basic facts.  

1. The trial judge had provided the jury with a written handout concerning the elements of murder.  She quoted from that handout during the course of her charge, saying as follows:

You see at the top of the handout, ‘Before you could find Elias Herodotou guilty of murder, there are four elements that the prosecution must prove beyond reasonable doubt.  One, Mr Herodotou did an act that caused the death of Mr Webb; and, two, the act that caused Mr Webb’s death was conscious, voluntary and deliberate; and, three, at the time he did the act that caused Mr Webb’s death Mr Herodotou either (a) intended to kill or cause really serious injury to Mr Webb or (b) knew that his act would probably cause death or really serious injury to Mr Webb; and, four, Mr Herodotou was not acting in self-defence because at the time he did the relevant act either:  (a) Mr Herodotou did not believe it was necessary to do what he did to defend himself from death or really serious injury; or (b) Mr Herodotou’s response was not a reasonable response to the circumstances as Mr Herodotou perceived them.’[3] 

[3]Emphasis added.

1. In relation to the first of the two alternative forms of mens rea, her Honour had reminded the jury of the key matters relied upon by the prosecution.  These included the evidence that the applicant had a grievance towards Mr Webb concerning the false rape allegation.  In addition, the fact that it was the applicant who started the fight.  Mr Webb was just yelling when he came into the room, and that did not provide any basis for the attack launched upon him.  The applicant threw the first two punches to Mr Webb’s face.

1. Her Honour added that it was the prosecution’s case that as the fight developed, the applicant had become progressively angrier.  The prosecution had also invited the jury to consider the number and nature of the injuries to Mr Webb’s body, more specifically, nine injuries which were to vulnerable parts of the body.  These were not mere superficial cuts but deliberate blows all done with the intention of at least causing serious injury.

1. Finally, her Honour noted that, on intention, the prosecution had invited the jury to consider the applicant’s conduct after he inflicted the injury to the neck.

1. Turning to the second way in which a guilty state of mind could be established, the trial judge left to the jury a possible finding of reckless murder.  She directed the jury as to how such a finding could be reached, focusing upon actual foresight of probability.  She carefully distinguished between the applicant’s state of mind, and what a hypothetical, reasonable person, might have appreciated in the circumstances.  

1. The question of whether both intentional and reckless murder should be left to the jury was briefly alluded to during the course of the trial.  Counsel for the applicant had said this:

There is an issue that I have in mind and I will seek to make a submission about it tomorrow.  In my submission it looks to me as if the Crown should not be permitted to lead intent here, that looks fanciful, but I will just reflect upon that, my friend has cross-examined on it and put conclusions to witnesses and it may disadvantage the defence now if one was taken away and the other left because it might give an augmented realism to the second one, so it is a situation that normally speaking the Crown elects in these situations when they are running manslaughter you usually, it is only a description comment rather than one of law, you’d usually only have one version of murder as the manslaughter or you would put perhaps the two.  It is not illegal as such, or categorically illegal to do otherwise, but it just creates an additional layer of complexity which can distract the jury from their task, and I am guess what I am asking here is that we all turn our mind, and unfortunately it falls to Your Honour who has to deliver the charge to deliver that with some level of clarity that doesn’t legitimise reckless murder merely because there is a worse one on the page.[4]

[4]Emphasis added.

1. The judge responded by noting that it might not be in the Crown’s interests to have both intentional and reckless murder left to the jury because this might be seen as a ‘scatter gun’ approach.  Counsel for the applicant replied that the prosecutor had opened with both intentional and reckless murder, so the jury would be aware of the Crown’s initial position.  The judge replied:

That’s true, but if the Crown were to say they are only pursuing reckless, then that’s just put to one side, but that’s a matter for the Crown.  I can say see your concern about confusion but then that’s a matter for my making sure I don’t make the charge confusing.[5]

[5]Emphasis added.

1. That response seemed to satisfy counsel for the applicant who expressed the view that he was certain that the charge would be ‘done clearly’.  Her Honour indicated that she would take some persuading to direct the prosecution not to persist with intentional murder because it would be problematic to do so at that late stage.  Counsel did not demur.  He contented himself with flagging the matter as a potential issue, after he had reflected upon it.

1. It is important to note that neither the prosecutor, nor counsel for the applicant, took exception to her Honour’s proposed course of leaving both intentional and reckless murder to the jury.  Nor did either counsel take any exception to her Honour’s charge after she did so. 

1. Nonetheless, the applicant now contends that it was an error to leave intentional murder to the jury, in light of the evidence led at trial.  The written case contends that when intentional murder was combined with the alternative of reckless murder, and the further alternative of manslaughter, the jury’s task would have been so confusing as to invite compromise. 

1. In the written case, the applicant refers to R v Barrett,[6] where Eames J (with whom Maxwell P and Habersberger AJA agreed) said:

There are sound reasons why the courts are reluctant to permit reckless murder to be left to a jury.  As Barwick CJ observed in Pemble v R (and see, too, the judgment of Buchanan JA in R v TY), the danger which the concept creates is that the jury might reason that the accused had, in fact, contemplated that death or really serious injury would be the probable consequence of his action merely because they thought that a reasonable person in his position would have foreseen one or other of those consequences as probable.  As Buchanan JA observed in TY, the elements of reckless murder may cause particular confusion for a jury where, in addition to directions on that topic, the jury must also be directed by the trial judge as to murderous intention by way of intention to kill or to cause really serious injury and, additionally, directed as to the elements of unlawful and dangerous act manslaughter.  In this case directions were given on all of those topics.[7]

[6](2007) 16 VR 240.

[7]Ibid 251 [50] (citations omitted).

1. The passage set out above provides a strong note of caution regarding the dangers of leaving reckless murder to the jury in circumstances where the primary case put forward by the prosecution is one of intentional murder.  Curiously, that passage is cited in support of the converse proposition that, in this case, reckless murder alone should have been left to the jury.

1. Interestingly, the oral argument before this Court changed course quite dramatically after counsel for the respondent was asked why, in the circumstances of this case, the prosecutor below had sought to have reckless murder left as an alternative at all.  That interchange with counsel for the respondent prompted counsel for the applicant in his reply, to foreshadow an application to amend ground 2, by including within it a complaint about reckless murder having been left to the jury.

1. As indicated, this departed substantially from the way that ground 2 was expressed, and had been developed in the applicant’s written case.  When pressed as to what prejudice the applicant may have sustained as a result of both intentional and reckless murder having been left to the jury, counsel for the applicant raised the possibility that the jury, even if satisfied that the applicant had deliberately stabbed Mr Webb to the neck, might not have been satisfied that he did so intending to kill, or cause really serious injury.  By leaving reckless murder as an alternative, the jury might have found that the applicant at least foresaw the probability of death or really serious injury, and convicted on that basis.  Implicitly, at least, it was submitted that this result could have been brought about by some form of impermissible compromise.

1. The difficulties associated with that argument were pointed out to counsel.  Included among those, was the failure to take up any such point at trial.  Indeed, the entire submission had about it the flavour of an afterthought.

1. In the end, the Court indicated that it would treat the foreshadowed application to amend as, in effect, a complaint about the judge’s decision to leave reckless murder to the jury, embodied within ground 2.

1. It should be noted that the respondent submitted in reply that reckless murder had been properly left to the jury in the particular circumstances of this case.  The fatal injury had been inflicted in the course of a fight, which involved a fierce struggle over a weapon.  The defence case was, in essence, that the wound which caused death had been inflicted involuntarily.  The fact that reckless murder had been left to the jury, with appropriate directions as to the difference between that form of mens rea and intentional murder, could not have resulted in any unfair prejudice to the applicant.  It could not have occasioned a substantial miscarriage of justice.

Ground 3

1. The applicant alleged, in support of ground 3, that a substantial miscarriage of justice had occurred because the prosecution case had unfolded in a confusing manner. At one point, early on in the trial, the prosecutor had sought to rely on some of the post-offence conduct as incriminating conduct within the meaning of s 18 of the Jury Directions Act 2015.  However, the Crown case had changed, when the prosecutor resiled from that position.

1. For example, the prosecutor did not ultimately rely upon the applicant’s actions in cutting the telephone wires in the hotel room as an admission by conduct, constituting incriminating conduct.  She essentially accepted, as plausible, the applicant’s explanation that he had done this because he feared being dealt with for breach of his bail.  In addition, the applicant said that he was concerned, at the time, about the fact that he had drugs on him.  After realising that Mr Webb was dead, he panicked and fled.  Once again, the prosecutor did not, ultimately, argue that this constituted incriminating conduct.

1. Although contending that the applicant had told a number of lies, post-offence, the prosecutor did not press for these to be treated as incriminating conduct.  Two of these lies, in particular, were said to be of significance.  The applicant told a friend, Jane Maling, that Mr Webb had pulled the knife on him first.  He had also told Ms Presti that he had merely jabbed Mr Webb in the legs, making ‘little pricks’, taking care to avoid doing any real damage.  However, Dr Ranson’s description of these wounds to the legs did not accord with that description.  The prosecutor accepted that these lies, assuming that the jury found them to be so, bore upon the applicant’s credibility only, and should not be treated as evidence of guilt.

1. According to the applicant’s submissions, incriminating conduct had originally been foreshadowed as relevant to rebut self-defence.  Indeed, the applicant’s behaviour in the immediate aftermath of the fight was specifically put to him in cross-examination as ‘an attempt to cover up the fact that [he] had killed him intentionally’.  As previously indicated, certain lies told by the applicant had also been put to him as indicating an attempt to avoid detection ‘for murder or at the very least manslaughter’.

1. However, after the cross-examination of the applicant had concluded, the prosecutor, having reflected overnight upon the matter, expressly disavowed any reliance on incriminating conduct as constituting an admission of guilt.[8]

   [8]The judge gave a direction in accordance with s 23 of the Jury Directions Act 2015.  That section is in the following terms:

   23 Direction to avoid risk of improper use of evidence

   (1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge—

   (a)direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

   (b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.

   The applicant submitted that the direction given by the judge was not sufficient to mitigate against the potential misuse of the evidence by the jury.  That was despite the fact that no exception was taken at trial to the direction given.

1. The applicant also submitted that the prosecutor’s approach to mens rea had changed significantly during the course of the trial.  She had originally contended that the applicant had been motivated to kill Mr Webb because of a build-up of anger at the false allegations of rape levelled against him by Mr Webb.

1. In cross-examination, however, the prosecutor did not challenge the applicant’s evidence that he only decided to grab the knife when he saw Mr Webb reach for it.  Accordingly, and correctly, the jury were directed that they could not reject the applicant’s unchallenged account as to why, and how, he had come to pick up the knife.  The prosecution case shifted, therefore, to one whereby the requisite mental state for murder may not have been formed until after the applicant had seized hold of the knife.

1. This change in tack was important, according to counsel for the applicant.  It meant that a good deal of the evidence that had been led had become largely irrelevant.  This included evidence concerning the activities of the friendship group on the day preceding the events at the hotel.  It also included evidence concerning the allegations that the applicant had previously committed rape.  This entire body of evidence was said by counsel for the applicant to have depicted the applicant in a ‘horrific self-indulgent light of drug-using, partying with no consequences and no responsibility’.

1. Lastly, in support of ground 3, though hardly identified within that ground as expressed, counsel for the applicant submitted that the confusion surrounding the prosecution case was exacerbated by the prosecutor’s closing address having been delivered with ‘unusual aggression’.

1. In support of that last submission, it was noted that the judge had raised with the prosecutor her concerns about the tone in which the prosecutor had delivered her closing address to the jury.

1. The transcript indicates that after the jury had left the courtroom, and the case was about to be adjourned for lunch, her Honour had said:

I interrupted a bit early because in your enthusiasm and getting more and more worked up.  I apprehend you said a number of things there that weren’t put to the accused.  That’s my initial impression, that you were getting — I understand you were trying to make some points but I think you may well have gone a bit far on some of those.  We’ll see what if anything arises or is said.  I’ll need to reflect on the transcript.  But I was really trying to save this going off the rails.  For instance this very emphatic at the last bit when he said ‘fuck him’.  I don’t recall you cross-examining Mr Herodotou about the tone that he used, when he said that.  You’ve done a very dramatic representation of that and … you didn’t cross-examine the accused or explore with Ms Williams what tone he used when he said ‘fuck him’, et cetera.  You got very, very dramatic.  That’s just one single example.  I basically called it time early so you could calm down and just reflect on what you’re saying. 

1. After the luncheon break, there was a discussion between the judge and the applicant’s counsel about the matter that the judge had raised.  The transcript reads as follows:

Applicant’s counsel: Your Honour raised some issues about the address of my learned friend.  I don’t want to interrupt it and stop it at this point, but there’s a couple of matters I think I should raise at this point.  The first one is that there’s a fine line about spirited addresses but the prosecutor is not here to secure convictions at any cost and that was way over the top, in my submission, what happened before lunch.

Her Honour:  That’s why — I agree entirely, which is why I put a stop to it.

Applicant’s counsel: Now, I haven’t sought instructions yet about any steps that we might seek to make or any applications.  Could I be clear, I would be hellishly reluctant to make an application to discharge this jury after this trial.  Mr Herodotou gave evidence and we do not want to lose this jury in those circumstances.  We have taken a step backwards because of what’s happened in the close, but at this point I am not making an application, I will indicate once I have taken instructions about that issue.

Her Honour:  In relation to that though, when I said I agree, it was spirited and she was getting quite dramatic in a quite inappropriate way.  That said, if there aren’t particular things that have been said that are prejudicial —  sorry, if there are particular things she said that are unfair and need correcting, I think in fairness you should identify them, both so that she has opportunity to correct it if she’s gone too far, and, in any event, that I then flagging if you are going to make me to ask a direction, but I certainly wouldn’t want you to think that you making –  –

Applicant’s counsel:  You’re not encouraging me to make the application? 

Her Honour:  No, and I don’t at the moment apprehend that anything she said is not able to be corrected.  I was putting a stop to it before she went too far because she was just getting so worked up, I thought we were about to go way over the edge which is why I just put a stop to it.  But are there particular things that you’re concerned about, because I think in fairness to the Crown, if they be can corrected, she ought to have an opportunity to do so.  That may not be the end of the matter, I may still say something.

Applicant’s counsel: No, well, Your Honour, we’ve only just been able to print the transcript of it.

Her Honour:  Right.  Well, reflect on it.

Applicant’s counsel: I did note — yes, I will reflect upon it, but I did note — it’s probably — it might even be doing my friend an injustice if I start specifying bits from the transcript.

Her Honour:  Don’t do it on the run if you’ve only just got the transcript.

Applicant’s counsel:  Yes, all right.  Well, perhaps we will just allow it to proceed for now and I will review the situation.

1. Before the jury returned to the courtroom, the prosecutor made a comment to the judge.  The transcript there reads as follows:

Prosecutor:  Your Honour, I just wish to say something.  In my submission, whilst the Crown has a duty to be fair, I have not been unfair and I have done no more than vigorously urge a view about the evidence.  I am not required to behave as an automaton, in my submission I have not gone over the line.

Her Honour:  Your statement of the law is unexceptionable.  But you do not know how you sounded.  You were screaming almost, and the recording will show it. ‘Fuck him’.  You never used that sort of intonation with any of the witnesses and none of them gave that sort of evidence.  I think you’re often not aware of the tone you’re using, both with the court, with my staff and with witnesses.  You’ve put your position on the record, that’s fine.  I regard what you did as going beyond — I’ve never seen a prosecutor in 12 years sitting in crime go as dramatically as you did, but that’s a matter for another day, there’s a recording that shows it, you’ve said your position.  I am not trying to stop you saying what you want to say, but you were going way over the top, and that’s why, to save the Crown and the defence and this trial, I put an end to it, and it’s why I told you to calm down.  Now, if you are ready, we will get the jury back. 

Prosecutor:  I am ready to proceed, Your Honour, thank you.

1. Nothing further was said on this subject.  In particular, no application was made for a discharge of the jury, and no request was made for any further action to be taken.

1. The respondent contended that ground 3, in all of its aspects, should be rejected. It was submitted that none of the alleged changes to the Crown case had been a cause for serious concern at trial. No complaint had been made, at the relevant time, as to the adequacy of the s 23 direction. In addition, there was nothing untoward, or improper, about the manner in which the prosecutor had delivered her closing address.

1. It was further submitted that both the judge’s charge and the earlier rulings on matters of evidence, had been extremely favourable to the applicant.  The fact that the prosecutor elected to resile from reliance upon incriminating conduct was a bonus so far as the applicant was concerned.

1. It was submitted that these factors, in combination, may have explained why the applicant’s counsel was content to allow the trial to proceed, without taking any exception to the charge, or seeking to have the jury discharged.

Legal principles

1. It must be borne in mind, when considering the proposed grounds of appeal, that this Court’s jurisdiction derives from s 276 of the Criminal Procedure Act 2009, which is in the following terms:

276  Determination of appeal against conviction

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.

Ground 1 – unsafe or unsatisfactory

1. The principles governing the circumstances in which a conviction will be set aside as unsafe or unsatisfactory are well established.  The leading authority is, of course, M v The Queen.[9]  There, the High Court stated that when dealing with such a ground, the question that an intermediate appellate 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.[10]

[9](1994) 181 CLR 487 (‘M v The Queen’).

[10]Ibid 493.

1. Of course, in answering that question, the Court must not disregard or discount either the consideration that the jury is the body primarily entrusted with determining guilt or innocence, nor that it is the jury who have had the benefit of seeing and hearing the witnesses give evidence.[11]

   [11]Ibid.

1. In Libke v The Queen,[12] the High Court elaborated upon the principles earlier laid down in M v The Queen.  There, Hayne J (with whom Gleeson CJ and Heydon J agreed) said:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[13]

[12](2007) 230 CLR 559 (‘Libke’).  See also R v Klamo (2008) 18 VR 644, 653–4 [38].

[13]Libke (2007) 230 CLR 559 (citations omitted) (emphasis in original).

1. In R v Baden-Clay,[14] the High Court again addressed the relevant principles. The Court stated:  

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code 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…

… a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[15]

[14](2016) 258 CLR 308.

[15]Ibid 329-30 [65]–[66] (citations omitted) (emphasis added).

1. It is clear from these decisions, and others like them, that the test for appellate intervention with respect to convictions said to be unsafe or unsatisfactory is a stringent one.

1. In the present case, in order for the applicant to succeed upon ground 1, he must show that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of his guilt.  In other words, he must establish that upon a consideration of all of the evidence,[16] the jury, acting reasonably, must have entertained a doubt as to his guilt.[17]

   [16]R v Hillier (2007) 228 CLR 618.

   [17]Libke (2007) 230 CLR 559, 596–7.

Grounds 2 and 3 – miscarriage of justice

1. A substantial miscarriage of justice occurs if the alleged error (in this case, as regards ground 2, the decision to leave intentional murder to the jury, or if the amendment to ground 2 is permitted, the decision to leave reckless murder to the jury), deprived the applicant of a real chance of being acquitted.  As regards ground 3, the question is whether the various shifts in the way in which the prosecution case was presented at trial, coupled with what is said to be an inflammatory address to the jury, might have had that same effect.

1. Even assuming that the irregularities identified in grounds 2 and 3 were made out, those grounds may fail if this Court were to be satisfied that an appropriately instructed jury, acting reasonably on the evidence before them, would inevitably have convicted the accused.[18]

Conclusion

[18]See Baini v The Queen (2012) 246 CLR 469, 480 where the majority said that the Court of Appeal’s satisfaction that a finding of guilt was inevitable is relevant, but not necessarily decisive, when considering whether there has been a ‘substantial miscarriage of justice’. See also Andelman v The Queen (2013) 38 VR 659, 683.

Ground 1

1. The applicant’s submissions in support of ground 1 seem to us to conflate the sole element of murder that really was in issue in this trial, namely whether the act causing death was conscious, voluntary and deliberate, with the quite separate element, never really a live issue, regarding murderous intent.  Once the jury were satisfied that the applicant consciously, voluntarily, and deliberately stabbed Mr Webb in the neck, it was almost inevitable that they would conclude that he intended to cause at least really serious injury.

1. The key focus had to be upon whether the applicant purposefully, by which we mean deliberately, stabbed Mr Webb in the neck.  In her charge to the jury, the judge summarised the prosecution case on that point as follows:

The prosecution says you can be satisfied that the neck injury was not caused accidentally.  The prosecution invites you to infer that it was caused by Mr Herodotou deliberately aiming the knife at vulnerable parts of Mr Webb’s body

1. In other words, her Honour directed the jury that, in order to be satisfied that the act causing death was not done accidentally, they would have to be satisfied that it was done consciously, voluntarily and deliberately.  The jury were also told that in order to be satisfied of the requisite mental element, they would have to be satisfied that the applicant had intentionally stabbed Mr Webb in the neck, a particularly vulnerable part of his body, and obviously known by the applicant to be so.

1. The intention to which her Honour referred in this part of her charge was what is often described as the ‘basic intent’.[19] This is to be contrasted with what is usually described as ‘specific intent’.  Murder is, of course, a crime of specific intent, requiring proof of an intention to kill, or to cause really serious injury.[20]  However, a component of that crime that goes to the actus reus, namely a conscious, voluntary and deliberate act, requires only the basic intention to do the act which brings about death.[21]  That is embodied within the notion of deliberateness.

   [19]In DPP v Morgan [1976] AC 182, Lord Simon defined ‘crimes of basic intent’ as those offences requiring a mens rea that does not go beyond the actus reus. Manslaughter is such a crime. See generally Simon Bronnit and Bernadette McSherry, Principles of Criminal Law (Lawbook Co, 4^th ed, 2017) 292.

   [20]Putting reckless murder, to which we have already referred, to one side.

   [21]In Ryan v The Queen (1967) 121 CLR 205, Barwick CJ spoke of the requirement that there be a ‘willed’ act. His Honour said that it was the act which must be willed, though its consequences might not be intended. In that case, the question was whether an accused who pointed a sawn off rifle at the deceased in the course of the robbery, which discharged and killed him, was guilty of murder. That depended, in part, upon whether he intentionally pulled the trigger, as distinct from discharging the weapon through a reflex reaction. The intention to pull the trigger involved what we would today call basic intent. The intention to kill or cause really serious injury would be specific intent.

1. Thus, in the present case, the prosecution had to establish that the applicant stabbed Mr Webb in the neck, intending at least to stab him in that part of the body.  Otherwise, his action in inflicting the stab wound would not, relevantly, be deliberate.

1. The prosecution at all times contended that the applicant had deliberately stabbed Mr Webb in the neck.  As part of its case in support of that particular element, it contended that the applicant had intentionally stabbed Mr Webb in the neck.  In her charge to the jury, the judge accurately summarised the way in which the prosecution had put its case with regard to this element.

1. The defence case, at trial, and again before this Court, was that the fatal wound to the neck had to be approached effectively as though it were an isolated act.  The critical moment, in relation to which the jury had to be satisfied that the infliction of the stab wound was deliberate, was the precise moment at which the fatal wound was inflicted.  

1. On the other hand, the prosecution, though acknowledging that this was the critical issue, relied on the broader context in contending that the jury were well entitled to conclude that the stab wound had been deliberately inflicted.  The prosecutor had cross-examined the applicant to that effect.  In her final address, she invited the jury to focus upon all of the other injuries inflicted, particularly those to the face and upper body of Mr Webb.  She argued that the jury should infer that the applicant had, at all times, been in control of the knife and its movements.

1. Before this Court, counsel for the respondent also emphasised the broader context of the offending, and noted that the applicant, in his evidence at trial, had accepted that he had deliberately inflicted a number of the stab wounds to Mr Webb.  For example, he had admitted that he had deliberately stabbed Mr Webb to the legs a number of times.  He had also deliberately inflicted the slash wound across his forehead.  Counsel for the respondent submitted that it was noteworthy that the applicant himself had suffered no incised wounds of any kind.

1. It was submitted that, in these circumstances, the jury could reasonably conclude that the fatal stab wound to Mr Webb's neck had been caused by the deliberate and purposeful act of the applicant.  We accept the Crown’s submission in that regard.

1. The jury were fully entitled to take into account the context in which the stab wound to the neck occurred.  In particular, that wound occurred against the background of a series of other injuries to the face and upper body, including:

(a)       two incised wounds near the eye and nose;

(b)      the laceration to the right side of the forehead;

(c)       the incised wound to the neck and chest; and

(d)      a second wound to the chest, just beneath the first wound.

1. In addition, there were other matters that provided relevant context:

(a)       the incised wound to the back of the shoulder, which could not have been inflicted if the fight occurred in the manner described by the applicant; and

(b)      the wounds to the forearm and side of the left elbow which bore the hallmarks of defensive wounds.

1. Furthermore, the broader context of the fight is relevant.  It commenced with an act of spontaneous aggression by the applicant to Mr Webb, punching him twice to the face.  It was plainly one of those blows that caused the fractures to the nose.  The judge correctly directed the jury that it was not the prosecution case that, at that stage, the applicant had formulated a murderous intent.  However, his conduct, in initiating the fight, was indicative of his frame of mind at a time shortly before the fatal blow was inflicted.

1. It is also relevant that the applicant himself did not sustain any knife wounds.  That factor, together with the number of incised wounds sustained by Mr Webb, provided a sound basis upon which the jury could be satisfied, beyond reasonable doubt, that at the critical moment, the applicant had control of the knife, and its use.

1. As regards the submission that the verdict of the jury should be set aside as unsafe or unsatisfactory because the evidence regarding the existence of murderous intent did not allow for that finding, it is clear that this is without substance.  Once the jury were satisfied, as they were plainly entitled to be, that the applicant had plunged the knife into Mr Webb’s neck, with ‘more than trivial force’, and that he had also inflicted a series of other stab wounds to the face and upper body, it is hard to see how they would not also be satisfied that he intended, or at the very least foresaw the probability, that really serious injury would result from his actions.

Ground 2

1. In our opinion, the Crown’s submissions with regard to this proposed ground of appeal, as it presently stands, should be accepted.  There was nothing wrong with leaving intentional murder to the jury.  Indeed, that was the primary basis upon which the prosecution case was conducted.

1. It is questionable, at the very least, whether the alternative case of reckless murder should also have been left to the jury.  The authorities have cautioned against reliance on reckless murder, unless the circumstances make it necessary to do so.  There are generally sound reasons why courts are reluctant to permit reckless murder to be left to a jury.  In particular, there may be a risk that the jury could, inadvertently, resort to an objective, rather than a subjective, analysis of the applicant's state of mind.

1. That risk is exacerbated when, as in the present case, there were issues relating to the element of voluntariness.  Self-defence was also likely to be in issue, and so too was manslaughter, which was left as a further alternative.[22]

   [22]See Pemble v The Queen (1971) 124 CLR 107, 118-20 (Barwick CJ); R v Sergi [1974] VR 1, 9–11; La Fontaine v The Queen (1976) 136 CLR 62, 69 (Barwick CJ), 77 (Gibbs J); R v TY (2006) 12 VR 557, 560 [15] (Buchanan JA); and R v Barrett (2007) 16 VR 240, 251 [49]–[51] (Eames JA).

1. However, despite our reservations as to the wisdom of the prosecutor’s decision to rely upon reckless murder as an alternative to intentional murder, we are satisfied that this did not bring about a miscarriage of justice.  The judge’s charge regarding both forms of murderous intent was, in our view, impeccable.  There was no risk that the jury could have been misled as to the requirements of each of these forms of the necessary mental state.  Nor was there a risk that they might have thought that the test was objective, rather than subjective.  They were directed, in the clearest of terms, that it was the applicant’s own state of mind that was critical, and not that of any hypothetical reasonable person.

Ground 3

1. We do not accept that the changes made to the prosecution case in the course of the trial could realistically have given rise to a miscarriage of justice, still less to a substantial miscarriage of justice.  The shift from reliance upon incriminating conduct was to the applicant’s benefit.  The evidence of what took place on the afternoon and evening of 4 July 2015, at Ms McIntosh’s flat, would have been admissible in any event as providing necessary context.  The jury were directed appropriately as to how they might use that evidence.

1. With regard to the shift in the prosecution’s approach as to when murderous intent was first formed, there was nothing surprising, or prejudicial about what occurred.  Once it became clear that the prosecutor had not challenged the applicant’s account of how he came to pick up the knife, it was obvious that the original theory of a pre-planned killing, motivated by anger at a false allegation of rape, could no longer be maintained.  The prosecutor’s retreat from her original position could only have assisted the applicant.

1. As we have said, the trial was conducted in a manner that could hardly have been more favourable to the defence.  In particular, the prosecutor’s decision not to rely on post offence conduct as incriminating conduct might be thought to have been particularly benevolent.

1. As regards the subset of ground 3 relating to the prosecutor’s supposedly inflammatory tone when addressing the jury, we have listened carefully to the audio recording of the relevant part of that address.

1. It is true that there was a point at which she spoke with particular emphasis.  She reminded the jury on several occasions of the applicant’s callous remark, at the conclusion of the fight, ‘fuck him’.  She uttered that expletive in a raised voice, which added dramatic force to the point that she was seeking to make.  She should not have done so.  Indeed, and as the judge pointed out, the prosecutor did not cross-examine Ms Williams or the applicant as to the tone that he had adopted when he said those words.

1. To that extent, her Honour’s remarks about the prosecutor’s delivery in her closing speech were justified.  We would not ourselves, however, have described the prosecutor as having ‘almost scream[ed]’.  In our view, the volume of her delivery fell well short of that description.  The members of this Court have all, at various times, heard more spirited and dramatic addresses, without any concern that a miscarriage of justice had thereby resulted.  

1. In any event, counsel for the applicant made a considered forensic choice not to take any further action regarding the brief part of the prosecutor’s closing address that caused her Honour concern.  Plainly, counsel was content to leave the matter alone.  On any view, a momentarily inappropriately raised voice could hardly have required the judge, of her own motion, to discharge the jury.  Certainly, there was no high degree of need for her Honour to have done so.

1. For the reasons set out above, we would grant leave to amend ground 2 but refuse the application for leave to appeal on all grounds.

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