Elwood v R

[2016] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Elwood v R [2016] NSWCCA 18
Hearing dates:	7 July 2015
Decision date:	22 February 2016
Before:	Meagher JA at [1]; McCallum J at [58]; Button J at [60]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL – conviction – armed assault with intent to rob on basis of joint criminal enterprise – whether verdict unreasonable or not supported by evidence – whether open to jury to be satisfied beyond reasonable doubt as to appellant’s participation in agreement to rob and knowledge of offensive weapon – whether jury’s verdict finding appellant guilty could logically and reasonably stand with verdict of not guilty in relation to co-accused – whether different verdicts so inconsistent necessary to intervene to prevent injustice occasioned by guilty verdict – where rational bases may account for different verdicts – where verdict of guilty was open on the evidence – no miscarriage of justice
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases Cited:	Hawi v R [2014] NSWCCA 83 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 R v Kirkman (1987) 44 SASR 591 SKA v The Queen [2011] HCA 13; 243 CLR 400
Category:	Principal judgment
Parties:	Luke Elwood (Appellant) Regina (Respondent)
Representation:	Counsel: P Strickland SC with A Heffernan (Appellant) P G Ingram SC (Respondent)   Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/204594
Publication restriction:	Suppression of names and addresses: Children (Criminal Proceedings Act 1987 (NSW), s 15A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: R v Dennis; R v Elwood [2014] NSWSC 1615 Date of Decision: 14 November 2015 Before: R A Hulme J File Number(s): 2011/144837

Judgment

1. MEAGHER JA: At about 6pm on 1 May 2011, four men went to a house in Marshall Street, Ashmont, a suburb of Wagga Wagga. Mr G lived at that address with his son, JG, who at that time was 17 years old. Because JG was a juvenile when the relevant offences were committed, the full names of the victims cannot be used: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Mr G was a small-time dealer of marijuana. In the events that followed he was assaulted and stabbed to death. His son, who was in the house, was also stabbed.

2. On 11 March 2014 Luke Elwood, who I will refer to as the appellant, and three co-accused, Bevan McKellar, his brother Ethan McKellar and the appellant’s cousin, Douglas Dennis, were each arraigned for trial before R A Hulme J on the following three charges:

1.   That on 1 May 2011 at Ashmont in the State of New South Wales he did murder Mr G.

2.   That on 1 May 2011 at Ashmont in the State of New South Wales he wounded JG with intent to cause grievous bodily harm.

3.   That on 1 May 2011 at Ashmont in the State of New South Wales, being armed with an offensive weapon, he assaulted Mr G with intent to rob him.

3. Each pleaded not guilty to the three charges.

4. On 9 April 2014 the jury found Ethan and Bevan McKellar guilty of murder (count 1), wounding with intent (count 2) and armed assault with intent to rob (count 3). The appellant and Mr Dennis were found not guilty of murder but guilty of manslaughter (count 1). Each was found not guilty of wounding with intent (count 2). The appellant was found guilty of armed assault with intent to rob (count 3) and Mr Dennis was found not guilty of that count.

The grounds of appeal

5. The appellant seeks leave to appeal from his conviction on count 3 under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Two grounds are relied upon. They are:

1.   The verdict was not reasonable or supported by the evidence.

2.   When regard is had to the verdicts of the jury in relation to the co-accused Mr Dennis on counts 1 and 3, the verdict of guilty in relation to the appellant on count 3 is a miscarriage of justice.

The Crown case

Overview

6. The Crown’s case was that the four co-accused went to the deceased’s home with an intention to rob him, and that two weapons were brought with the men; a machete and a knife. The Crown alleged that the appellant and Mr Dennis were aware, before they arrived at the house, that Ethan McKellar was carrying the machete. The armed assault (count 3) occurred when the deceased was punched by Bevan McKellar at the front door of the Marshall Street premises. The murder of Mr G was charged on the basis that there was either a joint criminal enterprise to rob Mr G or a joint criminal enterprise to assault him, the latter arising once the initial intention to rob, as charged by count 3, had been thwarted by JG’s presence and Mr G’s response to being punched at the front door.

7. None of the four accused gave evidence at the trial. JG was the principal witness for the Crown. There were two other eye witnesses to the stabbing of Mr G. They were Samuel Avo and Marie Uwase who lived next door to the deceased. The appellant and Mr Dennis gave electronically recorded interviews (ERISPs) to the police. Those recordings were tendered in the case against each interviewee, and admitted on that limited basis.

The facts

8. 1 May 2011 was a Sunday. On that afternoon the offenders, other than Mr Dennis, were drinking at a house in Connorton Street. At some stage they were joined by Mr Dennis. Around 6pm the four men travelled to Mr G’s house in a car driven by Mr Dennis. On the way they stopped at a house in Blakemore Avenue, where Ethan McKellar left and then returned to the vehicle. Marshall Street runs in a north-south direction with the even numbered houses commencing at its southern end (and on its western side) where it forms a T-intersection with Mumford Street. The car was parked around the corner and in Mumford Street, about five or six houses distant from Mr G’s address.

9. The four men were wearing “hoodies” which were pulled over their heads. At least two of them were also wearing caps. It was becoming dark. They proceeded on foot in a northerly direction along Marshall Street to Mr G’s address. Bevan McKellar and Mr Dennis stood outside the front door, which was on a small raised verandah, whilst the appellant and Ethan McKellar stood at the bottom of the three steps leading to that verandah. From where they were standing, with their backs to the front brick wall of the house, the latter two could not be seen by someone opening the door from inside the house. However, by leaning forward or moving slightly the appellant and Ethan McKellar could see what was going on at the top of the stairs. The house had an exterior screen door and a wooden door. When facing the door from the outside, the screen door hinged from the right and opened outwards. The wooden door hinged from the right and opened inwards. Bevan McKellar was standing to the left of Mr Dennis, who was facing that front door.

10. When the deceased answered the door, Mr Dennis asked for a “stick”. JG, who was in a bedroom of the house with his girlfriend and watching a movie, heard the knock on the door, heard his father go to the door to answer it and heard an exchange along the lines: “fuck, there’s a few of yas” and “we are just looking for a stick”. The deceased moved back into the house to retrieve the “stick”, returned a short time later and started to open the screen door. According to the appellant’s ERISP, as the deceased went back into the house, Ethan McKellar pulled the machete out from underneath his shirt and started to walk up the steps.

11. The next thing that JG heard was a thudding on the ground and loud noises. He opened the door from his bedroom to see his father lying on the ground on his back with his feet towards the door. A person in a white or grey jumper (identified as Bevan McKellar) was standing over his father, just inside the doorstep, “trying to come in”. As he was looking to “walk over” Mr G, the person glanced up at JG “really quick” and then turned around and ran outside. At the same time, Mr G got up and chased the man in the white hoodie. JG followed behind his father, who ran down the verandah steps, to the left and onto the neighbour’s front lawn, where he tripped. That was the lawn of the premises in which Marie Uwase and her boyfriend, Samuel Avo, were having dinner with her children.

12. According to the evidence of JG, after Mr G fell over, the man in the white hoodie turned around and kneed him in the body area. JG then punched that man in the face. JG turned around and saw another man in a black jumper, who he identified as Ethan McKellar, pull out a knife with a blade about 20 cm long. Ethan McKellar stabbed JG when he put his right arm up to protect himself. Bevan McKellar shouted “kill the cunt”. JG turned around and ran back up the stairs and onto the verandah. He then remembered that his girlfriend was inside. He stopped, turned and jumped the railing at the front of the verandah, landing on his father’s car which was parked on the lawn. He rolled off the car and was kneed in the face by the man in the white hoodie. He then felt a “cool feeling” across his lower back, and continued to run to his right and into the neighbouring property. That was the second time he was stabbed. These two stabbings were the subject of count 2. The two men then stopped chasing JG.

13. The Crown case was that whilst the McKellars were assaulting JG, the other two offenders must have had some physical altercation with Mr G that resulted in his moving to a position on the grass near the streetlight outside the front of Ms Uwase’s property. After he had retreated to the front verandah, JG saw his father near that streetlight on his hands and knees, curled over and surrounded by four men. He described two of those men as holding his father by the back of his shirt. He saw one of the men, wearing a black hoodie, stab his father in the back. He yelled out “get off him” and then saw the four men run off and down Marshall Street, in a northerly direction towards Webb Park. JG ran inside to get his phone and call emergency services. As he returned to the front door, his father walked into the house. He was bleeding. The ambulance and police arrived shortly afterwards.

14. Dr Stephen Wills, the forensic pathologist who carried out an autopsy of Mr G, found and described four stabbing or sharp force injuries. The principal and fatal injury was a large stab wound to the left side of the back of the chest, which penetrated through two ribs and into the upper lobe of his left lung. There was a further stab wound in the middle of the back penetrating through a right rib and entering the chest cavity. The remaining injuries were a shallow puncture type mark to his front, on the left side of the chest, and a shallow wound on the underside of his chin.

15. Mr Avo gave evidence that from his front door (behind a closed flyscreen) he saw one man on his knees surrounded by four people in the front yard, almost at the end of the grass and close to the street. There were two people “right in front of the person on the ground on all fours and there were two behind him”. Three of the men wore dark clothing and one wore light clothing. The man in the light clothing was kicking the person on the ground in the chest and head area. He also had a metal object in his hand, but did not use it. The two men standing right behind the man on the ground were dressed in dark clothing. One of them, standing to the left of the man on the ground was urging the others by saying “get the cunt, get the cunt”. Mr Avo saw all of the men run in the direction of Webb Park, leaving together.

16. Ms Uwase gave evidence that she was standing outside on the front porch and saw four people around a person lying on the ground at the front of her property. Those men were kicking the man on the ground and preventing him from getting up. She saw them stop him from fleeing on three occasions. She also recalled one of the men, although she could not remember which one, holding something like a knife. Eventually JG came out and the men started telling each other “let’s go, let’s go, let’s go”.

The appellant’s case at trial

17. The appellant denied that he was a party to any plan or agreement, either to rob Mr G or to assault him. He also denied that he was aware that Ethan McKellar was carrying the machete before it was produced at the bottom of the stairs leading to the deceased’s verandah (see [10] above). He gave two ERISPs. In the first he said that he and the others went to the deceased’s house to buy a “stick” and that he did not see who stabbed the deceased. He agreed that one of the four had stabbed him. He denied it was him. In the second he maintained that he believed they were going to pay for the “stick”. He agreed that the vehicle had stopped in Blakemore Avenue before it was parked near Marshall Street. He maintained his denial that he became aware that Ethan McKellar was carrying the machete before it was produced. He recalled Ethan McKellar chasing JG around the car, and stated that Ethan must have “come across and stuck the knife in him”. He said it all happened “real quick”, that he was “standing up in shock” and “just took off”. He denied being involved in the deceased’s death, or in the assault on either the deceased or his son. Those denials in relation to Mr G were inconsistent with the evidence of JG, Mr Avo and Ms Uwase which, whilst not identifying the appellant, implicated four persons in the assault in which the deceased was fatally stabbed.

The elements of the Crown case on counts 1 and 3

Count 1 – alternative verdict of manslaughter

18. The alternative verdict of manslaughter was founded on a robbery-based or assault-based extended joint criminal enterprise. It was accepted at trial and on appeal that to succeed on this charge, the Crown was required to prove:

1.   That at the time Mr G was stabbed, there was an understanding or arrangement amounting to an agreement, the object of which was to rob him; or an agreement, the object of which was to assault him;

2.   That the relevant accused was present and a party to that agreement;

3.   That the relevant accused contemplated the possibility of deliberate infliction of bodily harm on Mr G by a person who was a party to the agreement;

4.   That one of the parties to the agreement deliberately inflicted bodily harm on Mr G by an act that was both unlawful and dangerous; and

5.   That Mr G died as a result of that act.

19. Again, it was not controversial at trial or in this Court that, irrespective of whether the agreement was to rob or to assault Mr G, it was necessary that the jury be satisfied beyond reasonable doubt that the infliction of bodily harm by stabbing, as occurred, was reasonably within the scope of what the relevant accused contemplated might possibly occur in the course of the robbery or assault. In other words, as the trial judge directed the jury in writing, what occurred in relation to the infliction of bodily harm had to be consistent with what was contemplated.

Count 3 – armed assault with intent to rob

20. To make out the charge of assault with intent to rob, again on the basis that there was a joint criminal enterprise, the Crown was required to prove:

1.   That at the time Mr G was punched by Bevan McKellar, there was an understanding or arrangement, amounting to an agreement, the object of which was to rob him;

2.   That the relevant accused was present and a party to that agreement;

3.   That the relevant accused was aware that a party to the agreement was armed with an offensive weapon; and

4.   That a party to the agreement assaulted Mr G, with the intention of taking his property without his permission.

Ground 1: unreasonable verdict on count 3

Relevant principles

21. The question for this Court is whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt; in other words, “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493.

22. In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA vThe Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury’s advantage in seeing and hearing the evidence could have resolved that doubt. The jury’s advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCCA 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence.

23. The appellant’s argument focusses on whether it was open to the jury to be satisfied beyond reasonable doubt that there was an agreement to rob Mr G to which the appellant was a party and that he was aware before they arrived at the house that Ethan McKellar was armed with the machete.

Reasonable doubt as to whether there was a joint criminal enterprise to rob

24. The Crown’s case was that the only reasonable explanation for the actions and conduct of the four co-accused, up to and including the point at which Bevan McKellar punched Mr G, was that there was an agreement between them that they would assault and rob him.

25. The principal matters on which the Crown relied as justifying that conclusion were that the vehicle in which the four men arrived had not been parked outside or near the deceased’s house, but rather around the corner in Mumford Street; that all four men went to the house and stood at or nearby the front door, something which would have been unnecessary if the intention was merely to buy a “stick” of cannabis; that each of the men wore a garment with a hood covering his head, and two of them wore caps, those garments serving to obscure at least partially their appearance; that one of the men (Bevan McKellar) had, to the knowledge of the others, previously “ripped [the deceased] off for three sticks”, making it most unlikely that there was any innocent reason for Bevan McKellar to be present at the front door, if there was to be a straightforward purchase of drugs; that Ethan McKellar had concealed and brought a weapon (the machete) with him and pulled it out when Mr G went back into the house to get a “stick”; that Bevan McKellar punched the deceased as soon as he had partially opened the screen door, taking the first opportunity to do so after he had returned to the door and before it was likely that Mr G would recognise him; and that Bevan McKellar then moved to enter the premises by stepping over the prone Mr G, something he would not have done if his intention was merely to assault him.

26. The first argument made by the appellant is summarised as follows in his written submissions:

… a critical inadequacy in the Crown case on Count 3 was that there was no evidence that any of the four offenders at any time attempted to take any of the property of the deceased or [JG’s] property either when he was in his house or when he was being assaulted on the front lawn. The cannabis stick which the deceased had brought to the front of the house at the request of the offenders was found by the police to remain in the pocket of the deceased …. None of the offenders made any attempt to grab it or even to reach towards the deceased in any way either when he was standing up or on the ground in his house …

27. In the absence of such evidence, it was submitted that the Crown had not excluded the reasonable possibility that the four men were there to assault the deceased, or that they were there for some purpose, not necessarily innocent, which was other than to rob him.

28. In response, the Crown points to the following evidence of JG: (tcpt 13/03/14, pp 123-125)

Q.   What happened next?

A.   I then heard - that's when I heard the thudding on the ground and loud noises and then I opened my door to see my dad laying on the ground.

Q.   Please, [JG], tell us how he was lying on the ground. Was he on his back or on his side or on his stomach?

A.   On his back.

Q.   Was he lying with his feet towards the door or away from the door?

A.   Towards the door.

Q.   How close to the door were his feet?

A.   Pretty much right, right at the front door.

Q.   Did you see anybody else besides your father when you walked out of your room?

A.   The person in the white jumper. He was standing over him a little bit trying to come in.

Q.   Was he on the doorstep or inside the house or outside before you get to the doorstep still?

A.   He was just inside on the doorstep.

…

Q.   What was this person in white, what was he doing when you first saw him?

A.   He was trying to come into the house.

Q.   How?

A.   By walking over dad.

Q.   You appeared. What happened next?

A.   He looked up at me really quick and then turned around and ran outside.

Q.   Did you get a look at his face?

A.   No.

Q.   What happened next?

A   I seen dad get up and run outside after, and I followed dad outside as well.

29. These actions of Bevan McKellar (the person in white) were said not to be consistent with his purpose being merely to strike or assault Mr G. If that had been his purpose, it would have been satisfied by the punch thrown and its outcome, or by his continuing to assault Mr G. There would have been no need to step over Mr G in an attempt to enter the house. The Crown also submits that the events which followed – that Mr G got up and ran after Bevan McKellar and was followed by JG – explained why there were no further attempts to take the “stick” or other property of the deceased. Once it became apparent that the deceased was not alone, and that there was another person in the house, the four men withdrew. The events that ensued were a response to the resistance shown by Mr G and JG.

30. In my view the jury were entitled to conclude that the only plausible reason for Bevan McKellar’s attempt to enter the house, having punched Mr G to the ground, was to seize his property, most likely a quantity of cannabis. The fact that he did not take the cannabis that Mr G may have brought to the door was explained by the absence of an opportunity to do so. Bevan McKellar proposed to enter and search the house for cannabis and his punching Mr G, and moving to step over him, were an attempt to do so. The absence of evidence of the kind described in the passage extracted at [26] above did not make it necessary that the jury entertain a reasonable doubt as to whether the plan included the robbing of Mr G.

31. The appellant’s second argument is that several of the circumstances relied upon by the Crown, as justifying the conclusion that there was a plan to assault and rob Mr G, were not made out by the evidence admitted against him. It was also submitted that, to the extent that there was evidence of those circumstances, it did not exclude the reasonable possibility that any agreement between the men fell short of an agreement to rob Mr G.

32. The circumstances to which this argument is directed are described in the appellant’s written submissions (omitting transcript references) as follows:

The fact that the car driven by Dennis was not parked on Marshall Street (first point).

The appellant and the three other offenders went to the deceased's house with their hoodies on and their face partially or wholly concealed (second point).

Bevan McKellar was involved by his own admission to Jaykarta Merritt in an act of dishonesty against the deceased where he ripped off the deceased for a number of marijuana cigarettes (third point).

After introducing himself at the front door, Bevan McKellar punched the deceased once causing the deceased to fall to the ground (fourth point). [JG] saw the offender with the white hoodie (Bevan McKellar) start coming in at the door. When [JG] presented himself, that person turned and ran down the stairs (fifth point).

The appellant admitted to the police that he became aware when they arrived at the deceased’s house that Ethan McKellar had concealed a knife under his shirt. He described that knife as a machete (sixth point).

33. The jury had to be satisfied beyond reasonable doubt that the appellant was aware that Ethan McKellar was armed with the machete before the men arrived at the house because in the way the Crown put its case the agreement to assault and rob existed by the time they had arrived at the house. The appellant says that the jury could not have been satisfied beyond reasonable doubt that he was aware before the machete was produced that Ethan McKellar was armed or that, after that point in time and before Mr G was punched at the front door, he became party to an agreement to assault and rob him.

34. This argument is formulated as follows:

True, an agreement to rob can theoretically emerge spontaneously. However the Court would not be satisfied beyond reasonable doubt that it emerged spontaneously in this case. Accepting that the appellant only became aware of the machete when they arrived at the house, there was very limited time for such an agreement or understanding to be reached. It was equally possible that there was no agreement or understanding between all four offenders as to what would happen at the deceased’s house. … Alternatively, if an agreement or understanding were reached between the offenders, it is reasonably possible that the agreement was to assault the deceased or intimidate him.

35. It is convenient to address the appellant’s evidentiary argument first, and then to consider whether for one or other of the reasons argued, the jury should necessarily have entertained a reasonable doubt as to his guilt on count 3.

36. As to the first point: it was submitted that the evidence that the vehicle had not been parked in Marshall Street only emerged from Mr Dennis’ ERISP, which was not admitted against the appellant. That is not correct. There was evidence in the appellant’s first ERISP (Q+A 5) and in his second ERISP (Q+A 94-95, 167-175) of the fact that the vehicle had been parked on one of the corners at the T-intersection formed by Marshall and Mumford Streets.

37. As to the second point: it was not in issue that the appellant was wearing a cotton, short sleeve hoodie on the evening in question. His evidence was that he always wore his hood up. This was said to diminish the significance of his doing so on this occasion. The evidence also was that each of the other three men wore “hoodies” with the hood up. The Crown argued that it was significant that all four men were wearing such clothing on a mild evening that would partially obscure their appearance and make them difficult to identify. That was consistent with their purpose not being an innocent one.

38. As to the third point: it is said that the evidence of Bevan McKellar’s statement to Jaykarta Merritt was not admitted against the appellant. That is correct and the jury was so directed. However, there was also evidence admitted against the appellant that, about a week before the events in question, Bevan McKellar had told him that he “went about a week before and … ripped [Mr G] off for three sticks”: second ERISP (Q+A 138).

39. As to the fourth point: there was evidence, including from the appellant, that he saw Bevan McKellar punch the deceased immediately upon his return to the front door. At that time the appellant was nearby, at the bottom of the stairs: second ERISP (Q+A 95, 142-143, 176-186).

40. As to the fifth point: it is said that there was no evidence that the appellant was aware that anyone had entered or tried to enter the deceased’s house. That is so. The evidence of JG established that Bevan McKellar attempted to enter the residence. It did not establish that the appellant saw him do so. However the Crown did not have to establish that the appellant saw him do so to make out the elements of its case. That case included evidence that the appellant had initially positioned himself with Ethan McKellar at the bottom of the steps leading to the verandah; that before the punch was thrown (and before the deceased had returned to the door) Ethan McKellar had pulled out the machete and walked up the steps; and that when that occurred the appellant had stayed where he was: second ERISP (Q+A 279-280).

41. As to the sixth point: the appellant says that by his answers given in his second ERISP he admitted only that he became aware that Ethan McKellar was carrying the machete when it was actually produced. In the absence of his knowing that fact before they arrived at the house, it is said that the jury should have entertained a reasonable doubt as to whether he was party to any plan to rob Mr G made before that time.

Reasonable doubt as to whether appellant knew Ethan McKellar was armed with machete

42. The appellant’s account on this subject is contained in the following questions and answers in his second ERISP, which was conducted with his mother present. The references to Theresa Honeysett’s house are to the house in Blakemore Avenue where Mr Dennis’ vehicle stopped on the way to Mr G’s house (see [8] above):

MRS ELWOOD

Did you see Ethan with the knife?

A   Well, that's the thing, you know, I never seen him but ---

MRS ELWOOD

When youse got in the car ---

…

MRS ELWOOD

I just want him to tell the truth, you know.

DETECTIVE SENIOR CONSTABLE TINDAL

Q104   Yeah, that’s all right.

MRS ELWOOD

… he don’t know what I’m going through.

A   Yeah, I know mum, I understand, that’s what I’m saying fucken, well, [pause] before we jumped in the car I’m pretty sure he had a big machete.

…

Q202   And at that time did you see Ethan carrying anything?

A   Well, that’s when, that’s when we pulled up at Theresa’s.

MRS ELWOOD

Theresa Honeysett’s?

A   The mother-in-law place. I am sure he told Doug to stop there, but he ran in and grabbed something and come out

…

Q215   So when he got back in the car what did you see Ethan was carrying?

A   I never seen him carrying nothing then, until we got round to the house.

…

Q235 ….

MRS ELWOOD

How do you know he had a machete then?

A   Well, like I said, I didn’t know until we got around the house, he pulled it out.

MRS ELWOOD

Oh

A   That’s what I’m telling them.

…

Q311   When was the first time you saw the knife?

A   When we got actually to the house, when old mate was bringing the stick back to the door.

Q312   And where was, who had that, who had the knife?

A   Ethan.

Q313   Ethan had it at that stage or whereabouts was it?

A   Ethan had it.

Q314   Was it out or where was it?

A   Underneath his shirt.

Q315   Underneath his shirt. Could you see the knife at that stage?

A   No.

Q316   Can you describe the knife for us?

A   No.

…

Q322   And is that what he got from the house in Blakemore?

A   Yeah.

Q323   Rightio. How did you know that it was down the front of his pants?.

A   Well, that’s where he pulled it out when he got around to the house.

…

Q350   Yeah. When the car pulled up in Blakemore and Ethan got out of the car and came back with something ---

A   Yeah.

Q351   --- you mentioned before that it was pretty big, so how big was it or is it?

A   About that big.

Q352   And do you know roughly how big that is or not?

A   No.

Q353   O.K. So it’s about probably half a metre?

A   Yeah.

Q354   All right. So you didn’t see it when he sat in the car?

A   (NO AUDIBLE REPLY) [video shows appellant shaking head consistent with indicating no.]

Q355   Cause if it was down his shorts you wouldn’t think you’d be able to sit down, would you?

MRS ELWOOD

Hey.

A   Well, that’s another thing too, Sarge, that had me buggered, you know.

DETECTIVE SENIOR CONSTABLE TINDAL

Q356   Yeah.

A   And he’s there sitting right next to me, just like you.

DETECTIVE SENIOR CONSTABLE HARRIS

Q357   Yeah.

A   That’s what I’m there thinkin’ too.

43. The Crown case was that it was open to the jury to treat Q+A 104 as an admission by the appellant that he knew as they sat in the car and before they arrived at Mr G’s house that Ethan McKellar was armed with a machete. It is said on behalf of the appellant that his answer does not in terms describe something that was appreciated at that time, rather it represents his later conclusion as to what the position had been at that earlier point in time. This is said to be apparent from his subsequent answers, especially at Q+A 215, 235, 311 and 323, which deny that he had seen the “machete” or “knife” before it was produced at Mr G’s house. A question for the jury was whether they interpreted the appellant’s account in this way and treated it as sufficiently plausible to give rise to a reasonable doubt as to whether he knew when he was in the car that Ethan McKellar had the weapon (with the result that the Crown would not have discharged its onus).

44. The appellant said that he did not see Ethan McKellar “carrying” anything until they were at the house (Q+A 215); that McKellar did not pull the machete out until that time (Q+A 235); and that the first time he saw the knife was at the house (Q+A 311). It is to be noted that these answers do not in terms deny earlier knowledge that Ethan McKellar was carrying some form of offensive weapon. He also said that Ethan McKellar had asked Mr Dennis to stop at the Blakemore Avenue house and described him as having run in, “grabbed something” (Q+A 202) and come back “with something” (Q+A 350). He said the machete was probably half a metre long (Q+A 353).

45. The jury had to assess those answers in circumstances where other aspects of the appellant’s account were contradicted in critical respects by the evidence in the trial of the three eye witnesses. They had to take account of the size of the machete, the fact that when he returned to the car, Ethan McKellar was seated in the backseat and next to the appellant and that the appellant knew that Ethan McKellar had come back to the car with “something”. They were also entitled to take into account Mrs Elwood’s occasional interruptions (see in particular Q+A 103, 104, 235) and the way in which the appellant answered (especially Q+A 104, 235, 315, 357). Taking all of these matters into account, the jury was entitled to conclude that the appellant believed that, when Ethan McKellar returned to the car and sat beside him, he had a bladed weapon with him, which was concealed under his shirt. The certainty expressed by the answer at Q+A 104 acknowledges as much, as do his later descriptions of where the weapon was concealed.

46. Taking account of that and the other matters relied on by the Crown (see [25] above), it was open to the jury to conclude beyond reasonable doubt that the appellant understood that the plan was to assault and rob Mr G of a quantity of cannabis.

47. For those reasons, and having considered all of the evidence and the arguments made on behalf of the appellant, it is my view that it was open to the jury to be satisfied beyond reasonable doubt as to his guilt on count 3.

Ground 2: miscarriage of justice with respect to count 3 on account of inconsistent verdicts in relation to the co-accused Douglas Dennis

48. The appellant submits that the jury’s verdicts in finding Mr Dennis guilty of manslaughter and not guilty of assault with intent to rob cannot logically and reasonably stand with their verdict that the appellant was guilty on count 3. In that circumstance it is submitted that this Court should set aside that guilty verdict in order to prevent a possible injustice.

49. There is a distinction between cases of legal or technical inconsistency and, as relied on here, a case of suggested factual inconsistency. As the Court acknowledged in MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366 (proposition 2), the latter may arise between different verdicts affecting the same accused and between different verdicts affecting co-accused or persons tried separately in relation to connected events.

50. In a case such as the present, the test of whether a verdict of guilty should be set aside for inconsistency is one of logic and reasonableness and takes account of the ways in which the jury may realistically reason or rationalise their verdicts. In MacKenzie, at 367, the plurality (Gaudron, Gummow and Kirby JJ) agreed with the following observations of King CJ in R v Kirkman (1987) 44 SASR 591 at 593:

[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.

51. Ultimately, the question for this Court is whether the different verdicts are so inconsistent that it is necessary to intervene to prevent a possible injustice if a guilty verdict is allowed to stand: MacKenzie at 368 (proposition 5). I approach that question from the position, explained in relation to ground 1, that I am satisfied on a consideration of all the evidence that it was open to the jury to be satisfied of the appellant’s guilt on count 3 to the required standard.

52. The steps in the appellant’s argument are as follows. First, the verdict of guilty of manslaughter (count 1) for both Mr Dennis and the appellant meant that the jury was satisfied beyond reasonable doubt that each of them contemplated the possibility of the deliberate infliction of bodily harm through a stabbing injury to the deceased. It is said to follow that the jury must have concluded that each of them was aware that Ethan McKellar had brought a bladed weapon to the deceased’s house.

53. The argument then directs attention to the elements of count 3 (see [20] above), and in particular the requirement that each accused have been party to the agreement to rob. It is submitted that the reason for the jury’s verdict of acquittal on count 3 in relation to Mr Dennis must have been that they were not satisfied that he was party to such an agreement. It is then said that the jury’s different conclusion in relation to the appellant was unreasonable and illogical because in their ERISPs each made similar admissions about why he had gone to the deceased’s premises and as to what had occurred when he arrived. The problem for this argument is that, even if each did make similar admissions, it offers no explanation as to why this Court should proceed on the basis that the jury acted unreasonably in returning its verdict of guilty in relation to the appellant, rather than unreasonably in acquitting Mr Dennis on the same count.

54. There are, in any event, rational bases that may account for the different verdicts. One is that the jury were satisfied beyond reasonable doubt that the appellant was a party to the joint criminal enterprise to rob the deceased, but were not so satisfied in relation to Mr Dennis. That conclusion is not inconsistent with the guilty verdicts on the charges of manslaughter because the Crown’s case on those charges included an assault-based extended joint criminal enterprise. The jury had to assess separately the credibility of the appellant and Mr Dennis in relation to the ERISP of each. It was open to the jury to reject the appellant’s denial of his participation in a plan to assault and rob Mr G, whilst at the same time regarding as reasonably possible Mr Dennis’ account that he did not know what they were going to do.

51. The different verdicts on count 3 may also be reconciled on the basis that, although the jury were satisfied beyond reasonable doubt that each was party to an agreement to assault and rob Mr G, they were not satisfied that Mr Dennis was aware when they arrived at the house that Ethan McKellar had a knife or similar sharp force weapon. That being the position is not inconsistent with the jury’s verdict of guilty of manslaughter in relation to Mr Dennis because they may have concluded that he only became aware of the existence of a knife after the men had arrived at the premises, but before the assault and stabbing which resulted in Mr G’s death. In his third ERISP, Mr Dennis denied that he had known prior to the stabbing of the deceased that Ethan McKellar had either a machete or a knife. To find him guilty of manslaughter, the jury must have found that he contemplated the possibility of the use of a knife by one or other of the McKellars. When considering count 3 and assessing Mr Dennis’ evidence, including his answers suggesting that he was aware that the machete had been collected from Blakemore Avenue, the jury were entitled to take into account, not only his repeated denials of such knowledge, but also that he was the driver of the vehicle (rather than a passenger seated next to Ethan McKellar) and had not made any admission of seeing McKellar produce the machete at the house.

52. For those reasons I am not satisfied that there was any necessary factual inconsistency between the different verdicts on count 3 in relation to the appellant and Mr Dennis. Furthermore, even if it was difficult to reconcile those verdicts factually, I am not satisfied any inconsistency necessarily indicates that the jury acted unreasonably in returning their verdict that the appellant was guilty on count 3, in circumstances where that verdict was open on the evidence.

Conclusion

57. The orders I propose are that the appellant be granted leave to appeal against his conviction on count 3, but that the appeal be dismissed.

58. McCALLUM J: I agree with Meagher JA, for the reasons his Honour has stated. The critical issue raised by the appellant's grounds is the sufficiency of the evidence that the appellant knew Ethan McKellar was armed with an offensive weapon before the four men arrived at Mr G's house. On the strength of my own assessment of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that he did. The position occupied by each man in the car was an important factor against the appellant and an important difference between the cases as against the appellant and Mr Dennis, who was in the driver's seat. The jury may well have reasoned that the appellant could not possibly have missed the fact that Ethan McKellar was armed whereas the Crown had not excluded the reasonable possibility that Mr Dennis remained ignorant of that fact until after their arrival at the house. Based on my viewing of the video of the ERISP tendered by the appellant in the appeal, I am not persuaded that the jury must have entertained a reasonable doubt as to when the appellant became aware of the weapon. He was cooperative, even personable, but not wholly convincing on that issue.

59. I agree with the orders proposed by Meagher JA.

60. BUTTON J: I have made my own assessment of the evidence. I agree with Meagher JA.

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Decision last updated: 22 February 2016