Grant v The Queen

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GRANT v THE QUEEN
[2020] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Lovell)
26 June 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appeal against conviction for murder.
During the evening of 30 January 2017, the deceased was physically assaulted in a suburban street by three men acting in concert and subsequently died from his injuries. The appellant, in company with two other persons, A and B, had arrived in two cars and stopped outside the deceased’s premises. They were looking for a fourth person. Upon their arrival, a short verbal confrontation ensued with the deceased. The appellant chased the deceased down the street on foot and caught up with him. A and B immediately followed in the two cars. All three surrounded the deceased and assaulted him. Much of the action was recorded by CCTV cameras located at nearby premises.
It was the prosecution case that the appellant’s group travelled to the street with the intention of confronting the fourth person, probably to assault him. Following the confrontation with the deceased, the group formed a joint criminal enterprise to assault and cause grievous bodily harm to the deceased. Alternatively, if their common intention was merely to assault, the appellant must have contemplated that one of the protagonists might go further and cause grievous bodily harm. The appellant conceded that he had participated in the chase and the assault but denied that he was party to a joint criminal enterprise or extended joint criminal enterprise sufficient to prove murder. He pleaded to manslaughter by unlawful and dangerous act at the trial but this plea was not accepted by the prosecution. The essential issue in dispute at trial and on appeal was the state of mind of the appellant at the time of the fatal assault.
On appeal, the appellant contended that: (1) there was a miscarriage of justice occasioned by the failure of the prosecution to call a Mr Christopher Wheatley as a witness; (2) There was a miscarriage of justice occasioned by the treatment of the CCTV vision of the offending at the trial, in particular: (i) the prosecutor made a number of submissions as to what could be seen in the CCTV vision which should not have been made because there was no support for them in the vision; and (ii) the Judge erred in not directing the jury to ignore these submissions.
Held, per Nicholson J (Peek and Lovell JJ agreeing), dismissing the appeal:
1. The prosecutor’s failure to call Mr Wheatley was justified and did not result in a miscarriage of justice.
2. The submissions made by the prosecutor were open on the CCTV vision and did not amount to a miscarriage of justice; there was no occasion for the Judge to intervene in this respect.
Criminal Procedure Act 1921 (SA) s 158(1), referred to.
McAuliffe v The Queen (1995) 183 CLR 10; Miller v The Queen (2016) 259 CLR 380; M v The Queen (1994) 181 CLR 487; Pell v The Queen [2020] HCA 12; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450; Corfield v Police [2017] SASC 170; R v M, RS (2018) 131 SASR 24; Whitehorn v The Queen (1983) 152 CLR 657; R v B, DWL; R v B, CG [2019] SASCFC 101, discussed.

GRANT v THE QUEEN
[2020] SASCFC 61
Court of Criminal Appeal: Peek, Nicholson and Lovell JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
During the evening of 30 January 2017, Mark Boyce was physically assaulted in a street in one of Adelaide’s northern suburbs by three men acting in concert; Joshua Roy Grant (the appellant), a man I will refer to as A and a man I will refer to as B. Mr Boyce, whilst on the ground, was punched and kicked, including to the head, and subsequently died in hospital from injuries sustained. The cause of death was found to be blunt force head trauma. On occasion where the context permits, I will refer to the appellant, A and B as “the appellant’s group”.
As events transpired, the appellant alone stood trial before a Judge and jury in this Court and was convicted of murder. At the beginning of the trial, the appellant pleaded guilty to manslaughter before the jury but this plea was not accepted by the prosecution. Thereafter, it was not disputed that the appellant was one of the three men, to be seen on the closed circuit television (CCTV) vision of the incident, assaulting the deceased. Indeed, during her final address, senior counsel for the appellant[1] conceded that her client “was there … held [the deceased] down … [and] was party to the assault”.
[1] Different senior counsel appeared on the appeal.
The prosecution was unable and did not attempt to establish which blow or blows to the head caused death or by whom they were inflicted. Its case relied on the jury being satisfied that the appellant participated with one or both of A and B in a joint criminal enterprise or an extended joint criminal enterprise of such a nature as to satisfy the elements of the offence of murder.
The prosecution case was put to the jury in the alternative. The appellant’s group spontaneously agreed to act in concert with a common purpose to cause the deceased grievous (really serious) bodily harm and carried out that agreement.[2] Alternatively, they spontaneously agreed to assault the deceased and it was within the contemplation of the appellant that one or more of the participants would go further and intentionally cause grievous bodily harm to the deceased, and the appellant continued to participate notwithstanding.
[2] In her closing address, the prosecutor conceded that the appellant’s group did not set out to kill the deceased, only to cause him grievous bodily harm.
The appellant did not give evidence and the defence case at trial was a confined one: the prosecution had not proved beyond reasonable doubt that the appellant was party to an agreement to cause grievous bodily harm; and whilst an agreement to assault was conceded, the prosecution had not proved the element of contemplation necessary for an extended joint criminal enterprise.
The appellant does not contend that the jury’s verdict was unreasonable or not supported by the evidence.[3] Rather the appellant contends that for each of two reasons, his defence was not properly put before the jury such that he did not receive a fair trial and suffered a miscarriage of justice. The two grounds of appeal are as follows.
1.There was a miscarriage of justice occasioned by the failure of the prosecution to call Christopher Wheatley as a witness.
2.There was a miscarriage of justice occasioned by the treatment of the CCTV footage of the alleged offending by the prosecutor and trial judge.
Particulars
2.1 The prosecutor invited the jury to make findings that were not rationally available as to what could be seen on the CCTV footage; and
2.2 The learned trial judge did not correct the prosecutor’s invitation and left it open to the jury to make findings that were not rationally available.
[3] Subsection 158(1)(a) of the Criminal Procedure Act 1921 (SA), M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and Pell v The Queen [2020] HCA 12.
At an earlier hearing, I granted permission to appeal with respect to ground 1 and referred ground 2 for the question of permission to be considered by the Court of Criminal appeal in conjunction with the hearing of the appeal. I would grant permission to appeal on ground 2 but for the reasons that follow, I would dismiss the appeal.
The prosecution case in summary and further background
The deceased lived at number 11B on the eastern side of the street.[4] Number 11B is some seven or so houses down from a T-junction to the north and some seven or so houses up from a T-junction to the south. At the time, the deceased’s best friend, Sam Perkins, was actively avoiding the police[5] and certain other men who had become his enemies. Mr Perkins also knew Robbie Thaller who lived at number 20 on the western side of the street about three or so houses up from the T-junction to the south. Mr Perkins and the deceased had met Mr Thaller a couple of weeks before the incident. Mr Thaller also knew the appellant, A and Christopher Wheatley.
[4] Strictly, the street in question runs approximately from the north-east to the south-west. However, to simplify later orientation references, I will treat the street as running north to south and the house at 11B as being on the east side rather than the south-east side.
[5] A warrant for his arrest for breaching parole was active but unexecuted.
Positioned on Mr Thaller’s property at number 20 were CCTV cameras which afforded a view (and captured imagery) of his front apron and driveway and along the street in a northerly direction to the area of the house at 11B and beyond. The view also encompassed the street and footpath outside a house at number 18 on the western side of the street and next door to number 20. It was in this area that the assault took place, as captured by the CCTV. The movements of persons on the night in question and the times given for those movements identified in these reasons have been ascertained from the CCTV vision[6] together with the evidence of eyewitnesses and, unless otherwise indicated, are not in dispute.
[6] It was an agreed fact at trial that the times disclosed on the CCTV vision were 30 minutes before the actual times in South Australia. Unless otherwise indicated, the times given throughout these reasons are the correctly adjusted times.
Whilst hiding out, Mr Perkins spent time at both number 11B and number 20. During the early evening of 30 January 2017 he was at number 20. Arrangements were in place for a friend to collect Mr Perkins and to take him to another location. However, at about 9.00 pm that friend was stopped in her car by police very near to the T-junction to the south. This event was available to be seen on Mr Thaller’s CCTV and Mr Perkins became aware of it. He thereupon asked Mr Thaller to make other arrangements. Mr Thaller arranged for Christopher Wheatley to collect Mr Perkins.
Mr Perkins was concerned that the police who had stopped his friend might discover his location at number 20 and at about 10:02 pm he jogged from number 20 to number 11B and went inside. The deceased and three friends, all called Matthew, were inside. Each of the three Matthews, but particularly Matthew Marshall, gave evidence of potential significance. Mr Perkins waited at number 11B for Mr Wheatley; Mr Thaller remained at number 20.
At 10:29 pm, Mr Wheatley arrived at number 20, parked in the driveway and went inside to collect a backpack belonging to Mr Perkins. Mr Wheatley then drove north up to number 11B and at 10:35:46 pm parked immediately outside the driveway of number 11B facing north, that is, on the incorrect side of the road for his direction of travel.
At 10:35:57 pm, Mr Perkins came outside and spoke to Mr Wheatley who was sitting in his vehicle. He asked Mr Wheatley if the deceased could also have a lift. However, Mr Perkins saw headlights at the northern end of the street which worried him. He re-entered the house and made some observations of the street from the doorway and then with the deceased’s assistance, climbed a ladder on to the roof to hide and to see what was going on. From the roof, Mr Perkins had a reasonable view of the street, including Mr Wheatley’s car, although his view of the area outside number 18 where the assault took place was obscured by trees.
According to Mr Perkins, before he climbed on to the roof, the deceased said he would go outside. At about 10:42 pm, the deceased went outside through the front door of number 11B and went to Mr Wheatley’s car. They may have had a short conversation. However, within about 30 seconds, two vehicles travelled south from the direction of the northern T-junction and parked with their bonnets facing south near to Mr Wheatley’s vehicle still facing north. The two vehicles were on the correct side of the road for their direction of travel (the eastern side).
It is common ground that one of the vehicles was an SUV, referred to in the evidence, accurately or otherwise, as the RAV4, and was driven by B. It is also common ground that the other was a smaller vehicle, referred to in the evidence, accurately or otherwise, as a Toyota Echo, and was driven by A with the appellant in the front passenger seat. According to Mr Perkins, Mr Wheatley was driving a green Holden Commodore.
From the roof, Mr Perkins saw two men (A and the appellant) get out of the Echo and one man (B) get partially out of the RAV4. A short conversation between A and the deceased ensued. The conversation ended when the deceased took off and ran down the street in a southerly direction with the appellant chasing him.
The CCTV vision shows aspects of the chase, the appellant catching up with the deceased, the deceased falling to the ground outside number 18, the appellant standing over him and holding onto him,[7] the Echo and the RAV4 driving south from number 11B and stopping in the road near number 18 and both A and B exiting their vehicles and, with the appellant, gathering around the deceased. Thereafter, the vision, lasting no more than 15 seconds, shows the three men each participating, to a greater or lesser extent, in the assault on the deceased while he remained on the ground. The three men then returned to the two cars and drove off.
[7] It was the prosecution case that at this stage, whilst the appellant was on his own, he was doing more than merely standing over the deceased, but this is an issue central to appeal ground 2.
As an aid to identifying the respective involvements of the three assailants, as recorded in the CCTV vision, the following is common ground.
A can be seen exiting the driver’s side of the Echo and his movements from the car and during the assault can be traced with greater or lesser assurance according to the quality of the CCTV vision. A, was wearing a light, perhaps white, coloured top and is a tall very heavily built man, according to tendered photographic evidence.
B can be seen exiting the RAV4 and his movements from the car and during the assault can be traced with greater or lesser assurance according to the quality of the CCTV vision. B is the tallest of the three with a proportionately slighter build.
The appellant is the man seen chasing the deceased and his movements thereafter, including during the assault, can be traced with greater or lesser assurance according to the quality of the CCTV vision. The appellant is shorter than A but also heavily built. The appellant was wearing a white plaster cast on his right forearm on the night which can be seen at times in the vision. In addition, according to Mr Perkins the passenger in the Echo (the appellant) was wearing a “reddy … darker colour T-shirt”.
The CCTV vision taken during daylight hours is reasonably good quality. However, the night time footage is of poor quality, particularly given the limited lighting in the street and the interference caused by car headlights coming from the north from time to time, including those of the Echo and the RAV4 when the appellant chased and caught up with the deceased. The footage for the night in question is grainy, speckled and blurry. It shows unnatural speed of movement. Nevertheless, given the joint enterprise nature of the prosecution case, the limited issues in contention, the common ground as to the role the appellant played in chasing the deceased and attending throughout the assault (although not as to the extent of his involvement in the assault or as to his mental state) and the available identifying features for the appellant as compared with the other two assailants, the CCTV vision provided real assistance to the jury and was essential to the prosecution case. It was admissible and no objection to its tender was agitated at trial.
The jury had before it CCTV vision comprising a compilation of various recorded periods in original form (exhibit P17) and an “enhanced” version (exhibit P4). The enhanced version was prepared by Dr Matthew Sorell, a qualified expert, who used accepted techniques to enhance or clarify the vision without altering its fundamentals. As it happens, there is, for the non-expert, little discernible difference between the two.
In short, the prosecution case was that the appellant’s group, travelled to the street with the intention of confronting Mr Perkins, probably to assault him. Following the confrontation with the deceased outside Mr Wheatley’s car, they were diverted from their original intentions or plan. A different joint enterprise was spontaneously formed between the appellant and one or both of A and B to assault and cause grievous bodily harm to the deceased and the appellant participated in the furtherance of that plan. Alternatively, if the common intention was only to assault, falling short of causing grievous bodily harm, it was within the appellant’s contemplation, whilst he continued to participate, that one or other of the participants might[8] go further and intentionally cause grievous bodily harm.
[8] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380.
The defence case
The defence case at trial was that the appellant did not spontaneously enter into any agreement or plan of the sort propounded by the prosecution nor was it within his contemplation that the deceased might be assaulted in the manner in which he was by A who completely lost any self-control. It was at least a reasonable possibility that the appellant only ever contemplated getting hold of the deceased and detaining him in order that he might assist the appellant’s group with their enquiries as to the whereabouts of Mr Perkins. The appellant’s asserted state of mind was encapsulated by senior counsel at trial when she addressed the jury in the following terms.
… I just wanted to impress upon you that it's not the defence case that he couldn't have anticipated that there might be an assault. It's not the defence case that he could not have anticipated that [A] might do something. The question is: could he have anticipated and agreed with this man going completely off his rocker? When the only reason they were there, the only reason they were there, was to find Perkins. Plainly, members of the jury, if that's the only reason, they don't know Mr Boyce. There's no evidence that they've ever seen him before. There's no evidence that they had any motive of who he might be.
In terms of a plan to harm or cause very serious grievous bodily harm to Mr Boyce, the fact that they don't know him but, more importantly, putting aside [A], because we've seen how he behaved, if the plan is to find Perkins, my client plainly is chasing him to help to stop him so they can find Perkins, and the Crown say 'Well, we've heard from Mr Perkins about what was said', that is a matter for you.
. . . .
That at the end of the day, accepting that there is no motive that's expressed or implied for any harm to come to Mr Boyce and then there's a chase, plainly the purpose, as a reasonable possibility, must still be to find Mr Perkins. There's no reason to cause any harm in my client's mind, or anticipate any harm, insofar as what [A] finished up doing.
So, members of the jury, that's where we submit that it's important to bear in mind that when the Crown say that this fresh plan in relation to Mr Boyce occurred, it occurred in the context of the motive that you have heard of 'Where's Sam? We want to find Mr Perkins'.

Before dealing specifically with the two grounds of appeal, it will be helpful to set out a more detailed chronology of events from just prior to the time of Mr Wheatley’s arrival to the time that the assailants left in the two cars and a summary of some of the oral evidence.
A more detailed chronology
Unless otherwise indicated, the timings set out below are common ground.[9]
[9] Unless otherwise indicated, the observations, as stated, come from the CCTV vision and the evidence of Mr Perkins some of which is summarised below. Support for the times given is found in the CCTV vision and various telephone call records that are in evidence.
Initially, Mr Perkins was to be collected from Mr Thaller’s house at number 20. When Mr Perkins found out that his friend who was to collect him had been stopped by the police near the southern T-junction he became concerned that his location might be revealed to the police. He thereupon obtained Mr Thaller’s assistance to arrange another lift but to be collected from number 11B.
(i)Mr Perkins’ initial lift was intercepted and stopped by police at about 9.00 pm. According to Mr Perkins, he saw this on the CCTV and asked Mr Thaller to arrange another lift.
(ii)Mr Thaller telephoned Mr Wheatley at 9.51 pm.
(iii)At or about 10:02 pm, Mr Perkins jogged from number 20 to number 11B.
(iv)At 10:12 pm, a phone connection lasting 45 seconds took place initiated from a phone in the name of Shannon Howell to Mr Wheatley’s phone. Shannon Howell was the appellant’s partner at the time; the inference that the appellant was using her phone that night is not disputed.
(v)At 10:29 pm, Mr Wheatley parked in the driveway of number 20 and went inside the house.[10]
[10] According to Mr Perkins, it had been arranged that Mr Wheatley would “swing by” number 20 and collect Mr Perkins’ backpack on the way to collecting him at number 11B.
(vi)At 10:33 pm, the Echo and the RAV4 drove along the street in a northerly direction past number 20 and then slowed down outside number 11B before continuing towards the northern T-junction and out of camera view (first drive by).[11]
[11] That the cars slowed down outside number 11B, so as to reconnoitre, was the prosecution submission. The fact of braking and slowing down is supported by brake lights appearing to light up as shown on the CCTV. That the occupants of the cars were reconnoitring is supported by the brake lights, by the fact that the two cars drove along the street that night three times in close succession before stopping a fourth time when the altercation with the deceased ensued and by the evidence of Mr Perkins who said that from the roof, on one occasion, he saw the occupants of the Echo turn their heads to stare at number 11B.
(vii)At 10:35:46 pm, Mr Wheatley parked his car immediately outside number 11B, on the east side of the street and facing north.
(viii)At 10:35:57 pm (11 seconds after Mr Wheatley’s arrival in (vii)), Mr Perkins left number 11B and went to speak to Mr Wheatley. As put by the prosecution, Mr Wheatley thereby obtained visual confirmation that Mr Perkins was in the vicinity of number 11B.
(ix)At 10:36:39 pm, the Echo and the RAV4 came down the street from the north, engaging in a second drive by. The approaching headlights were visible to Mr Perkins who became concerned and retreated inside number 11B. The approaching headlights also, presumably, were visible to Mr Wheatley, given that his car was facing north.
(x)Still at 10:36 pm, the Echo and the RAV4 came to a stop adjacent to Mr Wheatley’s vehicle for between 5 and 12 seconds. The vehicles were positioned so that the Echo was closest to Mr Wheatley’s vehicle with the front passenger side of the Echo (where the appellant was sitting) alongside Mr Wheatley’s driver’s side window. According to the prosecution, an inference is available that the occupants of the two cars conversed and discussed the presence of Mr Perkins inside number 11B.[12]
(xi)The two vehicles continued south and at 10:36:52 pm they went past number 20 and out of camera view.
(xii)At 10:38:08 pm a third drive by took place. The Echo and the RAV4 travelled north and passed by number 11B and Mr Wheatley’s vehicle. The brake lights came on again, indicating a slowing down. However, the cars did not stop on this occasion.
(xiii)At 10:39:09 pm (about 1 minute after the third drive by in (xii)), a phone registered in the name of A connected with Mr Wheatley’s phone for 43 seconds. Either A made the call or, given that A was driving, more likely the appellant made the call. Either way both would have been privy to at least one side of the conversation. The prosecution contended, and I accept, that A and the appellant or one of them conversed with Mr Wheatley on at least one but probably three occasions: the 10:12 pm phone call, the time when the two cars stopped for 5 to 12 seconds and the 10:39 pm phone connection for 43 seconds, and that the topic was the whereabouts of Mr Perkins.
(xiv)Some two minutes or so later, at 10:41:55 pm, the deceased came out from number 11B and approached Mr Wheatley’s car. I interpolate here that the CCTV vision at this point clearly shows a shadowy figure walk from a flash of light source, at or about where the front door for number 11B should be, towards and stopping at Mr Wheatley’s car. At or about the time the shadowy figure first appears, one can see on the CCTV vision the flash of light source, as if a door has opened allowing the figure to emerge from a lit room.[13] This observation, taken from the CCTV vision at this point, is of potential significance to an aspect of appeal ground 2.1 as explained later in these reasons.
(xv)At 10:42:12 pm, the headlights of the Echo and the RAV4 coming from the north (a fourth visit) are visible and at or about 10:42:30 pm the Echo was stationary facing south and adjacent to Mr Wheatley’s vehicle and by 10:42:39 pm the RAV4 was parked nearby.
(xvi)Soon after the two vehicles stopped on this occasion, the altercation outside number 11B between A and the appellant and the deceased resulting in the deceased being chased down to number 18, as earlier described, took place.
(xvii)That part of the assault outside number 18 when all three were present occurred between approximately 10:43:12 pm and 10:43:26 pm.
[12] Such an inference is readily available on all of the evidence including the, later to be made, demands addressed to the deceased “where the fuck’s Sam”.
[13] This interpretation of the CCTV vision at this point is consistent with the evidence of Mr Perkins that he saw the deceased leave the house and walk to Mr Wheatley’s vehicle very shortly before he saw vehicles approaching from the north; see the next chronological entry in the text.
Eyewitness evidence concerning the actual assault
Apart from the CCTV vision, the only eyewitness accounts of seeing any aspect of the assault, itself, were those given by Paul Pollock who lived at number 18 and Matthew Marshall. Mr Perkins described what he could see and hear from the roof concerning the altercation with the deceased outside number 11B. However, he lost sight of the deceased running away and of the appellant chasing him because of the foliage. Robbie Thaller and his then partner, Erin Bourke, were inside their house at number 20 and said that they saw nothing until after the assault had finished. The other two Matthews – Matthew Rozenboom and Matthew Crampton – were inside number 11B with Mr Marshall, the deceased and Mr Perkins. They saw Mr Perkins leave their presence and heard noises on the roof. They saw the deceased leave the house. However, they did not go outside the house until after the assault had come to an end.
Sam Perkins
Sam Perkins gave the following evidence as to what he saw and heard when A and his passenger, the appellant, interacted with the deceased.
Q.Tell us what happened next.
A.I hear 'Where the fuck's Sam? Where the fuck's Sam? Where the fuck's Sam?' And then the person in the little car, the driver of that car was on that side of the car (INDICATES). Obviously that side was a driver. The passenger was out. The driver of the little car was the one who said 'Where the fuck's Sam? Where the fuck's Sam? Where the fuck's Sam?' and the passenger of the little car was in a bridging motion.
Q.What did you call it.
A.Like a bridging motion, you know.
Q.A bridging motion. What do you mean by that, describe that in words.
A.Well, if not standing like this he's, you know what I mean (INDICATES).
Q.So standing, your arms out.
A.Hey?
Q.Standing with his arms out.
A.Puffed out chest.
Q.Puffed out of the chest. How were his arms positioned.
A.Just like - they're not out like this, you know what I mean, both sides, just ready to attack.
Q.So, puffed out chest, standing upright with the arms out and bent.
A.Not out and bent, just ready to attack, you know what I mean, body language, yeah.
Q.So that was the man that got out of the passenger side of the small car.
A.Yeah, that's right, yep.
Q.And the man who got out of the driver's side of the small car said those words that you talked about.
A.Yeah, 'Where the fuck's Sam? Where the fuck's Sam? 'Where the fuck's Sam?'
Q.Those words, was that the tone that was used, the tone that you've used.
A.Yeah, aggressive tone.
Q.Were they said with any kind of an accent.
A.Yeah, a bit of an accent. It wasn't Aussie, you know what I mean, yeah.
Q.What about the larger car, the RAV4, did you see anyone in -
A.Yeah, I seen the person. So what happened was he's - the driver door's opened and he's got one leg in the car still, right, but his right leg on the ground of the car, getting out with one hand where the door's open. He's got one hand on the door and, like, one on the roof, you know what I mean, so he's out like that (INDICATES) of the car, you know. And then when Boycey ran around the front of Wheatley's car and then come back towards the back of the car towards Robbie's house, the RAV4 driver's jumped in, the one who goes 'Where the fuck's Sam? Where the fuck's Sam? Where the fuck's Sam?' has jumped into the driver's seat of the little car and started driving down. The passenger in the little car starts chasing Boycey, yeah.
Q.So pausing there, we've got the passenger out positioned in the way you've described, we've got the driver of the small car with those words.
A.Yep.
Q.How did Mr Boyce respond to those words.
A.He was, he was, he knew something wasn't right and that's why he -
Q.With his body or what he said, what did you see him do.
A.He was saying 'I haven't seen him' or 'He's not here' or something and then he's ran around the car. When he's come around the car he's like (INDICATES), he's trying to get around, he's put his hand on the bonnet to get around quicker type thing.
Q.I know you're demonstrating but perhaps if you stay seated and we will try and describe it in words where we can, okay. So Mr Boyce has come around the front of Mr Wheatley's car and the front is facing [the T-junction to the north] Road.
A.Mm-hmm.
Q.So from the passenger side he has come around the front.
A.Yep.
Q.And in coming around the front he's got his hand on the bonnet.
A.Yeah, trying to get around a lot quicker, you know, not falling over, yeah. He had thongs on.
Q.Once he got around the driver's side, where did he go.
A.He come past Wheatley's driver's door, past his back passenger door, past the boot and heading towards Robbie's house and then the passenger of the little car has started chasing him …
Thereafter, prosecuting counsel attempted, with limited success, to obtain more precise details of the actions of the various protagonists outside number 11B. Mr Perkins said that he did not hear the deceased swearing, he formed the view that “He was going to try and cool the situation down”. In any event, the essence of Mr Perkins’ evidence was to the effect that, whether or not something else was said that he did not hear or something else occurred that he did not observe or recognise, almost directly after the conversation recounted by Mr Perkins, the deceased took off running south and was pursued.
It is common ground that the man who was said to have shouted three times “where the fuck’s Sam” and who, according to Mr Perkins, spoke with an accent, was A, the driver of the Echo, and that the man who chased the deceased was the appellant. However, in cross-examination, Mr Perkins departed from his evidence in chief in an important respect. He confirmed the accuracy of his earlier statement to the police that it was the driver of the Echo (A) not, as he had said in chief, the passenger (the appellant) who had assumed a “bridging” or fighting stance.
Paul Pollock
As at January 2017, Paul Pollock was living with his mother at number 18. On the night in question, Mr Pollock was in his loungeroom watching television when he heard several male people yelling. I set out below a lengthy extract from Mr Pollock’s evidence in chief but before doing so make the following observations with respect to that evidence.
Given other evidence available to the jury, it was open to the jury to infer that:
(i)the evidence emphasised in italics was a reference to A;
(ii)the evidence emphasised in bold was a reference to the appellant, although the reference to a “light top” must be incorrect. Nevertheless, the witness was clearly referring to the person “laying the punch” being someone other than the man in the “white or creamy sort of tank top, T-shirt” who was “doing most of the kicking”;
(iii)on the basis of the evidence that has been underlined for emphasis, all three participated to some extent in the actual assault; and
(iv)the evidence in underlined italics represented a conflation by Mr Pollock of actions by A and by the appellant[14] and, for this reason, this particular evidence was unreliable insofar as the appellant is concerned.
[14] Particularly, if Mr Perkins’ evidence that the appellant was not wearing a light coloured top were to be accepted.
Further, it was open to the jury to infer from the extract from the cross-examination also set out below that Mr Pollock may have conflated aspects of his memory of events seen on the night with aspects of his memory of events seen on the CCTV vision.
Q.What is the next thing that happened.
A.Well, I'd got up, went to the front, opened the door and I seen these figures out there because then the light come on[15] and you could see a couple of chaps and that hitting, kicking.
[15] Mr Pollock had earlier given evidence about sensor lights at the front of the property and that one on the verandah was activated as soon as the front screen door was opened.
..  .  .
A.Well, the one that I mainly seen he was pretty - reasonably stocky, not real, real tall. Probably about 5 foot 10 to 6 foot roughly.
Q.And what was that person doing.
A.He was kicking.
Q.What was he kicking.
A.The body on the ground.
Q.How many times did that person kick the body on the ground.
A.That I couldn't say for sure, I just seen kicks.
..  .  .
Q.Did you make any observations of the clothing that this person was wearing.
A.Which person?
Q.So the person that you've mainly seen who you've described as being stocky.
A.Yeah, at this stage I think it was either a white or a creamy sort of tank top, T-shirt, yeah.
..  .  .
Q.You've described the person's height as about 5 foot 10 to 6 foot, did you notice anything else about the person's build.
A.No, just that he was, you know, pretty muscular, yeah.
Q.Was that person doing anything else that you saw.
A.No, not at this stage because it was just kicking and hitting, but I think he was doing most of the kicking.
..  .  .
Q.You've also described hitting, what do you mean by hitting.
A.Well, you know, in a punch form (INDICATES).
Q.And who was doing that.
A.The other couple of chaps, you know the lad was down on the ground curled up and they were, you know (INDICATES).
Q.So was one or more than one of them hitting.
A.I couldn't be definite on that as to exactly, but they were both, you know, very close to each other. One of them was laying the punch.
Q.And how many blows did you see thrown.
A.That I couldn't say.
Q.Was it one or more than one.
A.It would be more than one.
..  .  .
Q.Where was the hand or hands going in relation to the body that was on the ground.
A.It would only be a guess, and it would be around the stomach to the rib area.
Q.Where were the kicks in relation to the body that was on the ground.
A.To the head, to the stomach and the ribs, yeah.
..  .  .
Q.… You said that one of the three males was about five foot 10 to six foot and muscular. I am going to ask you a few questions about that male. You said you saw a couple of kicks and that you saw his leg moving, how did his leg move.
A.I suppose like trying to kick a ball, you know, a soccer ball, you know, sort of not hard but, you know, it's hard to distinguish and say how they were kicking or fighting.
Q.Did you see the person on the ground react when there was kicking.
A.No.
..  .  .
Q.Can I take your attention to the person who was giving the punch. What did that person look like.
A.Muscular, male, round the five 10 mark.
Q.Did you make any observations about the person's clothing.
A.Not really. I think it was a light top and there's something else that keeps flashing back as if there is a cast on an arm.
Q.What other observations did you make of that person.
A.Nothing that I can recall at this stage.
..  .  .
Q.The person who was throwing the blows, how were they moving.
HIS HONOUR:      How was he moving?
Q.He moving.
A.Well, they were much the same, you know, it was like a group were fighting. There was one victim and they were, you know, hitting, kicking. I can't explain it any better than that really.
..  .  .
Q.Were any one of the three males standing there doing nothing throughout this.
A.Not that I could recall.
Q.How long did this go on for.
A.It was very brief. You know, it was only matter of seconds.
Q.What's happened next.
A.Well they just headed off to the cars.
..  .  .
Q.Were you able to see which of the three offenders went to which car.
A.I think the chap that I sort of recognised the most, he went to the front vehicle.
Q.The person that you say you recognised the most, which of the three people is that.
A.Well the muscular chap that I could see, yeah.
Q.Is that the person -
..  .  .
Q.Which actions did you see that person doing.
A.One of them doing hitting and kicking, punching and kicking.
Q.What did that person look like.
A.Muscular, about 5'10" to six foot.
Q.What was that person wearing.
A.A light-coloured top.
Q.Did you notice anything about that person's arm.
A.I think that one of the arms had a cast on it.
HIS HONOUR
Q.You did you say a cast or a cask.
A.A cast, like a broken arm or something.
XN
Q.Where did the other people go.
A.Well, one got into the back car and I think two got into the front car but I'm not definitely sure.
Q.What's the last thing that happened before they went to the car - the cars.
A.Just hit - kicking, punching.
(Emphases added)

In cross-examination, Mr Pollock confirmed that the movement of the front screen door activated his sensor light. He then gave this evidence.
Q.You told the members of the jury that when the light came on that's when you saw the three men go to their cars, is that right?
A.Sorry, seen the three men?
Q.Go to their cars, you said that you saw them go to their cars.
A.Yeah, not straightaway, yeah. It was a matter of seconds.
Q.It wasn't the case that as you opened the door and the light came on the males ran off, is that how it happened.
A.Within seconds, yeah. It wasn't instant, you know, it was a few seconds.
Mr Pollock was then questioned on the fact that, in his statement given to the police on the night but signed in declaration form a couple of weeks later, he made no mention of seeing a cast on the arm of one of the assailants. The following exchange occurred.
Q.Is it fair to say the only opportunity you really had to see what was going on was as your light came on and in the few seconds you described before they ran off.
A.Yes, in the few seconds it happened.
Q.So in terms of your memory of the appearance of the three men, was it the case that you could make out - in what you remembered saying to the police - only one of the males in terms of being able to describe them.
A.Yes, he stood out more.
Q.That was the one you described as kicking and punching.
A.Yes.
Q.And had the white top.
A.Yeah.
Q.Did you say to the police you could really only make out one of the males and that was the male you described with the white top.
A.That is correct.
Q.It is correct, as you said, you said nothing about a flash of a cast that you described having in the last few days, correct.
A.Yes.
Q.You were, I think, spoken to by [the prosecutor], as I said, a week or so ago.
A.Yes.
Q.You didn't say anything about a cast to her, did you.
A.No.
Q.But is it correct that you were actually shown CCTV footage, that's a video, of these events that is by the police … back in August last year.
.. . .
A.Yes.
.. . .
Q.Is it correct to say that when you saw that CCTV and the figures running to the car you could see on the CCTV that one of the men was wearing a cast.
A.Possibly, yes.
Q.So what I'm asking you is, when you say you've had flashes in the last few days, could that be from what you saw on the CCTV with the police that that's come into your head.
A.I couldn't say for sure because the CCTV didn't sort of flash back in anything, it was just the figure of the person and there was something, a cast.
Q.Is it fair to say that flash you really can't link to any person.
A.Sorry, the flash?
Q.I'll rephrase that. You've seen the CCTV; correct.
A.Yeah.
Q.You can't really say whether that flash, you've got it in the last few days because you might have seen something on the CCTV. Would that be right. I'm saying is that possible that could be the case.
A.That's possible, yeah.
Matthew Marshall
I turn to consider Matthew Marshall’s evidence which, like that of Mr Pollock, was relied on by the prosecution in support of its contention as to the role played by the appellant in the assault itself. As such, it was relevant to any inference to be drawn concerning his state of mind. The defence contended at trial that Mr Marshall did not see any aspect of the assault as it was unfolding and that his evidence in this respect was, in effect, untruthful or unreliable.
The appellant as part of appeal ground 2 complains about a submission put by the prosecution at trial concerning a fairly esoteric aspect of the CCTV vision which it submitted supports Mr Marshall’s account. The consideration of this complaint needs to be undertaken against the background of all of the evidence relevant to the issue before the jury of whether or not Mr Marshall’s eyewitness account of the appellant’s involvement in the assault was reliable. For this reason, I will spend some time dealing with Mr Marshall’s evidence.
Mr Marshall had been a friend of the deceased for about 15 years. He and the other two Matthews were at the deceased’s house, 11B, during the evening in question. The deceased and Mr Perkins were there when the three Matthews arrived. All five were talking in an open plan area at the back of the house. The deceased and Mr Perkins were waiting for a lift somewhere. Mr Marshall saw the deceased and Mr Perkins walk down the hallway in the direction of the front door. He then saw “Sam come back in”, they said nothing to each other but about 30 seconds or a minute later, Mr Marshall heard noises on the roof.
Mr Marshall said that he thought it was weird that “they said they were leaving and then Sam’s come back in and there was no Boyce”. He left the other two Matthews and went to the front door, opened it, but stayed in the house. He described seeing a car parked immediately outside on the same side of the road as 11B and facing the incorrect way (north).[16] He described the car as dark and “sort of Commodore size”. He saw a man in the driver’s seat on the phone – “I could see a glow”. I interpolate here that this man must have been Mr Wheatley. Mr Marshall did not recognise him.
[16] At one point, Mr Marshall said the car which was the only one he saw at this time was facing the street at the southern T-junction but this was clearly an unintended error. His description of where and how the car was parked and facing towards “Holdens” (which is to the north of the street) and in the context of his evidence as a whole, was clearly consistent with having observed Mr Wheatley’s car facing north.
Mr Marshall on this first visit to the front door stayed “not very long, just a couple of seconds”. He went back to the lounge/dining area and sat down “probably for maybe a minute” before going back to the front door. This time, when he opened the door, he saw two cars in the middle of the road “literally right out the front again” but facing south. He could not see the dark Commodore. He saw three people in the area. He said: “I just seen them running back to the cars. I don’t know where they come from”. He could not “really remember” how many got into the cars but was pretty sure that one got into the smaller car and two got into the larger one. I interpolate here that Mr Marshall must have been mistaken in his recollection of three men getting into the two cars. The next thing he observed was that “they took off down the road” to the south. Mr Marshall then gave this evidence.
Q.What did you do then.
A.I'm pretty sure from memory I went to walk back down the hallway but then it's sort of - I stopped before the glass sliding doors and then I've gone back out and as I've come to the front door I've heard yelling and I've taken that extra step out off the verandah.
Q.Yes.
A.And I could see something up the end of the street.
..  .  .
A.I just walked to the verandah. I don't recall that car being there but, yeah, I've just walked to the end of the verandah and I couldn't see nothing so I walked a little bit further on to the footpath and that's when I've seen down the road, seen them two cars stopped.
..  .  .
Q.Did you see anything at that point.
A.Yeah, I seen three people, looked like they was jumping on someone.
Q.Where were the three people.
A.On the footpath.
..  .  .
Q.I want now to ask you about these three men that you've described as I think you said jumping on someone.
A.That's what it looked like from where I was anyway.
..  .  .
Q.Mr Marshall, I think you said you couldn't distinguish the size of the three men, can you tell us anything about the physical description of the three men.
A.No.
Q.Was there anything that distinguished one from any of the others.
A.No.
Q.Either physically or in the way that they were acting.
A.No.
Q.How long did you observe the men behaving in that way for, that is stomping or kicking.
A.It was literally only like seconds.
..  .  .
Q.Mr Marshall, I will ask it again, I think I used a word that you hadn't used. How long did you observe the men jumping or stomping for.
A.Maybe a couple of seconds.
Q.What's the next thing that you saw happen.
A.They run off to the car in the middle of the road.
Q.What did they do once they reached the cars.
A.Took off.
..  .  .
Q.You used a term before of jumping, I wonder if you can explain what you mean by jumping on the man.
A.I will rephrase it and say more stomping.
Q.What do you mean by the term stomping.
A.Just like stomping your foot (INDICATES).
Q.We can't see you there but are you lifting your leg and bringing it down in a straight motion.
A.Yeah. Yeah.
Mr Marshall said that he then walked down to number 18 and realised that it was “Boycey” on the ground. He ran back to number 11B and told the “other Matts” what had happened. Mr Marshall then left in his car to find the deceased’s partner and bring her back to the scene after which he took her to the hospital to which the deceased had been taken.
During cross-examination, Mr Marshall was shown a short section of CCTV vision of the street at a time after the two cars had driven away and before the ambulance had arrived. Mr Marshall identified himself walking down the street and agreed that what he saw “fit[ted] with what [he remembered] about [his] movements”. However, it is common ground that this vision of Mr Marshall walking down the street was recorded some six minutes after the two cars were recorded in the CCTV vision as having left. The defence contended that this was inconsistent with Mr Marshall’s evidence before the jury about when he walked down the street and saw the deceased. It was the defence case that, given this timing of when Mr Marshall walked down the street and saw that the person on the ground was his friend, he could not have seen any aspect of the actual assault.
Mr Marshall was cross-examined at length, recorded across 20 pages of transcript, with respect to two statements he had given to the police in February 2017, the first being based on a conversation he had with a police officer in the early hours of the morning following the assault. The cross-examination resulted in the identification of a number of apparent prior inconsistent statements, some acknowledged to be so by Mr Marshall and others not, a number of prior consistent statements, various requests to refresh memory (but without a proper foundation for refreshment of memory being laid) and various earlier statements told to the police not recounted in evidence some of which were said by Mr Marshall to be correct and some said to be incorrect. Mr Marshall was directly challenged with the assertion that he did not see the assault. He rejected that assertion.
Notwithstanding various apparent departures from his earlier police statements, Mr Marshall insisted that what he had told the jury had been correct. His memory at trial was better than it had been at the time he gave the police statements largely because of the traumatising nature of what had happened to his friend on the night. He felt emotionally “wrecked” and had not been in a state to give an accurate account to the police.
The jury had the unfortunate task of assessing the weight to be given to Mr Marshall’s evidence; a task, given the nature of the appeal grounds, that is not before this Court. The defence submission in its closing address before the jury challenged Mr Marshall’s evidence of walking out onto the footpath, seeing aspects of the assault and then walking down on the basis that he is seen in the CCTV vision to walk down the street some six minutes after the cars leave. The inference to be drawn from his delay in going to see what the commotion was about is that he had not in fact, seen the assault taking place. The prosecutor in her closing address made a number of submissions in support of Mr Marshall’s credibility and reliability but did not directly address the six minute hiatus issue.
Matthew Rozenboom and Matthew Crampton
Before leaving Mr Marshall it is necessary to briefly refer to aspects of the evidence given by Matthew Rozenboom and Matthew Crampton. Mr Rozenboom gave this evidence which, if accepted, would lend support to a finding that Mr Marshall saw something more than just the cars out the front of number 11B.
Q.Did Mr Marshall leave the house at any point.
A.He only left after it had happened, in his car.
Q.So Mr Marshall was in that family area.
A.Yep. Pretty positive.
Q.Was there any point at which he left that family area.
A.Yeah, he just thought he heard something out the front so he started walking towards the front.
Q.Did you lose sight of him when he walked towards the front.
A.Yep.
Q.Did you remain in that family area.
A.Yep.
Q.How long was it before you saw Mr Marshall again.
A.Not even a minute, saying something had happened.
Q.Where was Mr Marshall when you saw him again.
A.Just at that - I think he, you know the little dogleg near bedroom 2, either that or near the front door because he was yelling.
Q.You say he was yelling.
A.Yeah.
Q.What was he yelling.
A.He was yelling something had happened or something along those lines.
Q.That something had happened.
A.Yeah.
Q.Did he say who it had happened to.
A.Nuh.
Q.Did he appear to be on the phone.
A.I think so, yes.
.. . .
A.I walked out to the street, yep.
Q.What did you see.
A.By the time I got out there I just seen a bunch of people around and - that's all I could really see from where I was.
.. . .
Q.What about Matthew Marshall, what did he do after you went outside.
A.Well he went down there and then he come back and got his car to go get Sarah I'm pretty sure.
Matthew Crampton’s evidence on this topic, arguably, was more vague.
Q.From that point, you've heard the noises on the roof, Mr Boyce has gone out the front, who was in the back section of the house then.
A.Just me and the other two Matts.
Q.Did any of the other Matts leave that area after that.
A.A short time after, [Matthew Marshall] got up and went out the front.
Q.Did he come back to that open area at the back at all.
A.Yeah, on the phone to Mark's girlfriend.
Q.Between him getting up and going towards the front and coming back on the phone, how much time would you estimate had passed.
A.Five minutes.
Q.Is that an estimate or an accurate time.
A.Just an estimate. It could have been five, 10, 15, yeah.
Q.You saw him on the phone.
A.Yep.
Q.Could you hear what he was saying on the phone.
A.He said that Boyce had just been kicked in.
Q.Was that said on the phone, or to you.
A.On the phone.
Q.Did he say anything to you.
A.Nope.
Q.Did he say anything on the phone about coming to get that person.
A.Yeah, he was going to pick up Sarah.
Q.What did you then do.
A.Went out the front.
Q.Who else went out the front with you.
A.Superman.
Q.So just you and one of the other Matts.
A.We were all out there by that stage, yeah.
Q.What did Matthew Marshall do, the man who was the driver of the car.
A.He went and got Sarah.
Q.Is Sarah Mr Boyce's partner at the time.
A.Correct.
Finally, when considering the reliability of Mr Marshall’s evidence as to what he said he saw, the jury was entitled to also have regard to Mr Pollock’s evidence. There are consistencies in the two accounts, in particular that both said that three men were party to the assault and that they got into two cars parked nearby and drove away.
Appeal ground 1
As is apparent from the reasons to this point, Christopher Wheatley was present in the location of and at the time of the initial interactions between the appellant’s group and the deceased outside number 11B. The appellant maintains that Mr Wheatley was an important witness whose evidence would have assisted the defence case. The appellant contends that the prosecutor wrongly exercised her prosecutorial discretion when she decided not to lead evidence from Mr Wheatley in the prosecution case which thereby gave rise to a miscarriage of justice.
Mr Wheatley gave a signed statement to the police dated 8 March 2017, that is, a little more than five weeks after the incident. In that statement, Mr Wheatley said that Mr Perkins (“Sam”) was someone he had met maybe three times and that he had known the deceased (“Boycey”) for about six months. He also explained how he came to be outside number 11B to collect Mr Perkins. The statement continued as follows (I have numbered the paragraphs for convenience).
(1)I had been waiting a while so I turned my headlights off at some point. It felt like ten minutes before Sam came out, he spoke to me through the driver’s side window and said he needed a lift down near Nelson Road or Kelly Road at Para Hills. Sam asked if Boycey could come, I said no worries. Sam said he’d fix me up with some petrol money, I was only dropping them to the address, Sam said he’d get a taxi back.
(2)Sam went back inside to get Boycey, as he walked back in two cars pulled up and stopped next to my car. One pulled up just past me, the other just next to me. They stopped only for a second, it was like a rolling stop, before they took of straight away. I don’t know if they would have been able to see Sam walking back to the house at that time. I can’t describe the cars in any detail, it all happened so fast, I think they were little cars, little buzz boxes, but I can’t be sure. I think one sounded like it had a ‘hot dog’ exhaust, I didn’t see it but it makes a distinctive sound. I have dark tinted windows, I can’t describe what type of cars they were or how many people were in them.
(3)A short time after the cars went by, Boycey got into the front passenger seat of my car. I think he had a drink in his hand, I think it was a can, I’m not sure, I think it was alcoholic as Boycey was in good spirits, I thought he was a bit tipsy.
(4)I asked Boycey where Sam was, Boycey thought he was with me in the car. We started talking shit to each other while we waited for Sam to come back out. Boycey told me how he had stacked a motorbike or scooter recently, I assume in the street, he was talking excitedly. He said his knees were all cut up from the stack. Boycey also said his girlfriend wasn’t very happy with him for being a dickhead on the bike.
(5)Whilst waiting for Sam to come out two cars again pulled up in the same fashion as earlier. My car was parked on the wrong side of the road facing north. The two cars came from that direction. Both cars parked near my boot line, so they were behind me.
(6)Boycey got out of the car and I heard Boycey say “What’s going on here?” I heard another male voice say “Where’s Sam cunt?” I only heard one voice, it was a normal accent, it didn’t sound foreign. I got the feeling Boycey knew the male by the way he got out of the car and said “what’s going on here”. The reply by the male was assertive and Boycey replied something like “What cunt” in an aggressive tone. The next thing I know I saw Boycey stumble back and to the left, I think he was hit with a left punch, but I didn’t see it. Boycey picked himself up using the guard of my car. I didn’t see who hit Boyceye. Boycey took off around the front of my car towards his house, I thought he was running inside. Next thing I notice the tail lights of the two cars in my rear window heading down the street. I didn’t think they were chasing Boycey, I thought they were taking off. I don’t remember seeing the two cars stop, but I did see them take off again from down the street back towards Robbie’s house. I had no idea they had chased Boycey or had stopped to bash him, I only figured that out afterwards.

The light features to which the prosecution directed the jury’s attention can be located by reference to a larger, brighter, triangular, fixed in position light source. Whatever this light source represented (even if an artefact of the CCTV vision) is of no moment. Its use is solely as a reference point to assist in locating and describing other observations.
On my review of the CCTV vision at the time of the fatal assault, I am satisfied that there is available to be seen in the background a flash of light in the vicinity of where the front door to number 11B should be. That flash dissipates but, as described by the prosecution, a “subtle shape of light” appears to move from that light source toward the street. It is as if a person is moving. Some 15 to 20 seconds later, the subtle shape of light moves back as if retracing its path until a flash of light similar to the first again appears. As I say, these are my observations.
The prosecution submission to the jury was to the effect that the first flash of light was as if a door had opened allowing a figure (the subtle shape of light) to emerge from a lit room which door then closed. The second flash of light was as if the door to the lit room had opened again to allow the subtle shape of light to re-enter.
The phenomenon to be observed is of the same nature as that described earlier ((xiv) of paragraph [29]) at the time when the deceased exited from number 11B. However, the earlier example is clearer in that a shadowy figure can at times more clearly be seen.
The prosecution contended that this feature of the CCTV vision was consistent with and supportive of Mr Marshall’s evidence that he went outside and was able to observe the fatal assault taking place outside number 18. In my view, it was open to the prosecution to make submission 5 based on what can be observed in the relevant part of the CCTV vision.
As it happens, further support for submission 5 arises by virtue of the fact that the same type of light features or phenomena can be seen, commencing approximately six minutes later in the CCTV vision. Again, there is a flash of light in the vicinity of number 11B suggesting that a door appears to open and a shape of light moves forward which returns and re-enters through another flash of light about one minute and forty seconds later. This second posited opening and closing of the door to number 11B occurs at the time that, and is consistent with the defence case as to when, Mr Marshall can be seen in the CCTV vision to walk down the street so as to see the deceased on the ground after the two cars had driven off.
Whilst ultimately a matter for the jury, it may be that Mr Marshall was confused or mistaken in his evidence and that he went outside twice; once very briefly while the assault was taking place and once some minutes later to inspect the aftermath. In any event, on my viewing of the CCTV vision, there is clear support for submission 5 as put to the jury.
Conclusion
Neither appeal ground 1 nor the complaint in appeal ground 2.1 is made out. As such, it is not necessary to consider the complaint in appeal ground 2.2 other than to say that the Judge had no cause to direct the jury other than he did. As I said at the outset of these reasons, I would grant permission to appeal on ground 2 but dismiss the appeal.
LOVELL J: I would grant permission to appeal on ground 2 but dismiss the appeal for the reasons given by Nicholson J.

[2020] SASCFC 61

26 June 2020

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Evidence

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Appeal

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Sentencing