Lorke v The Queen

[2019] SASCFC 147

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

LORKE v THE QUEEN

[2019] SASCFC 147

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)

22 November 2019

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED - VERDICT NOT UNREASONABLE - GENERALLY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

On 13 September 2017, Skeyhill was working with his employer and friend, Rollond. They finished work early and drank a large amount of beer before going to Skeyhill’s property at around 10.00 pm. A confrontation occurred in which Lorke stabbed Skeyhill with a large knife. Lorke was convicted of murder.

Lorke and Skeyhill had had recent disputes which culminated in a physical fight on the Sunday prior to the death. Skeyhill had seen on Lorke’s property what appeared to be an SKS assault rifle but was in fact a replica airgun. It appears that Skeyhill then installed cameras but none were located during police searches.

Held, per Peek J (Doyle and Nicholson JJ agreeing), dismissing the appeal:

1. As to Ground 1 (Unreasonable verdict): It was open to the jury to conclude that the defences upon which Lorke relied were each disproven by the prosecution beyond a reasonable doubt. Criminal Law Consolidation Act 1935 (SA) (CLCA) s 15 discussed. M v The Queen (1994) 181 CLR 487; Mule v The Queen (2005) 79 ALJR 1573 considered.

2.  As to Grounds 2 and 2A: The Judge’s directions correctly removed from the jury’s consideration the prosecution theory that Lorke had “stolen” camera(s) and hence had premeditation; they also made clear that the determination of the facts, including as to Rollond’s reliability and credibility, was a matter for the jury. The decision not to ask for further directions was consistent with the action of competent counsel. There was no miscarriage of justice.

3. As to Ground 3: Evidence concerning the replica airgun was admissible since Lorke was carrying it during the stabbing incident and agreed facts made clear that Skeyhill’s earlier sighting had not been of a real SKS assault rifle. Evidence Act 1929 (SA) s 34 R was not engaged. The Judge was justified in taking the view that further directions as to impermissible use of the evidence would have been contrary to Lorke’s best interests and the action of defence counsel in not requesting such directions was consistent with the action of competent counsel. R v Soteriou (2013) 118 SASR 119; Police v Rosales [2017] SASC 118; R v Fleming; R v Maher (2017) 129 SASR 27; R v Jones [2018] SASCFC 96; R v Pali (2018) 132 SASR 201 considered. There was no miscarriage of justice.

4. As to Ground 4 (self-defence directions): There was no error of law. A number of examples in the summing up identified evidence and arguments favourable to Lorke. McKell v The Queen (2019) 363 ALR 668 considered. There was no miscarriage of justice.

5. As to Grounds 5 and 6 (the s 15C CLCA ‘home invasion’ defence): First, the defence applies if, and only if, the conditions precedent are satisfied. It is not engaged if the prosecution proves that the defendant did not have the genuine belief required by s 15(1) of the CLCA. R v Roberts (2011) 111 SASR 100; Braysich v The Queen (2011) 243 CLR 434 discussed.

6.  Secondly, the summing up was very favourable to Lorke. The jurors would likely have understood that it was sufficient if Lorke considered (albeit wrongly) that what had occurred, or was taking place, was a ‘home invasion’ as jurors might understand that term. The decision to not ask for further directions generally, or specifically as to joint enterprise, was a rational forensic choice and consistent with the action of competent counsel. There was no miscarriage of justice.

7.  Thirdly, the summing up (together with the aide-memoire) would have conveyed that the three things that Lorke had to prove were capable of being proven irrespective of the fact that he did not give evidence. There was no error of law and no miscarriage of justice.

8. Fourthly, in any event, Grounds 5 and 6 do not arise since the verdict of murder is explicable only on the basis that the jury found it proved that Lorke did not have the genuine belief referred to in s 15(1). A ‘home invasion’ defence was unavailable and this Court is not required to nullify the verdict on an unrealistic and theoretical basis that the jury might have convicted of manslaughter only. Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; James v The Queen (2014) 253 CLR 475; R v Suppiah [2018] SASCFC 11 discussed.

Criminal Law Consolidation Act 1935 (SA) s 15(1)(a), s 15(1)(b), s 15A, s 15C(1), s 15C(2), s 168, s 170; Evidence Act 1929 (SA) s 34P, s 34R, referred to.
Braysich v The Queen (2011) 243 CLR 434; Chatterton v Police [2011] SASC 137; Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; James v The Queen (2014) 253 CLR 475; Nudd v The Queen (2006) 80 ALJR 614; R v Roberts (2011) 111 SASR 100; R v Suppiah [2018] SASCFC 11, discussed.
Ali v The Queen (2005) 79 ALJR 662; R v Fleming; R v Maher (2017) 129 SASR 27; R v Jones [2018] SASCFC 96; M v The Queen (1994) 181 CLR 487; McKell v The Queen (2019) 363 ALR 668; Mraz v The Queen (1955) 93 CLR 493; Mule v The Queen (2005) 79 ALJR 1573; R v Pali (2018) 132 SASR 201; Ross v The King (1922) 30 CLR 246; R v Soteriou (2013) 118 SASR 119; Suppiah v The Queen [2019] HCASL 42; TKWJ v The Queen (2002) 212 CLR 124; Wilson v The Queen (1992) 174 CLR 313, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Home invasion defence"

LORKE v THE QUEEN
[2019] SASCFC 147

Court of Criminal Appeal:  Peek, Nicholson and Doyle JJ

PEEK J: Appeal against conviction for murder.

1. Darren Lorke (Lorke) was convicted by a jury of committing the murder of Kevin Skeyhill (Skeyhill) on Wednesday, 13 September 2017 at Tungkillo. I will consider his appeal against conviction in four parts.

   -Part One: Introduction

   -Part Two: Self-Defence (Grounds 1 to 4 of Appeal)

   -Part Three: “Home Invasion” (Grounds 5 & 6 of Appeal)

   -Part Four: Grounds 5 & 6 Do Not Arise For Consideration

   PART ONE: INTRODUCTION

2. Lorke and Skeyhill lived on adjacent properties on Adelaide Road, Tungkillo. Their properties were divided by a wire fence of about waist height which had been the subject of dispute between the men for some time prior to Skeyhill’s death. Animosity had escalated shortly prior to Skeyhill’s death. In particular, the two had argued about stormwater which had been running off Skeyhill’s property and onto Lorke’s property. Lorke dug a trench along the fence line, on Skeyhill’s side, down his gravel driveway which caused the stormwater to be diverted onto Skeyhill’s driveway.[1]

   [1]    It was described in evidence by Mr Ronald Burton (Burton), a neighbour who lived directly opposite Skeyhill’s property on Adelaide Road, as “pretty pathetic” such that “a small child could dig”. Evidence at trial suggested that it had been dug on Friday 8 September 2017. Brian Clothier (Clothier), a shed hand and colleague of Skeyhill, gave evidence that on approximately the Wednesday prior to the death, Skeyhill said to him that Lorke had dug a trench into his driveway and that water was pouring down his driveway. However, a small spiral bound notebook recovered from Skeyhill’s property by his daughter (Exhibit P24A – the notebook) contained an entry headed “Friday night”, which read: “couldn’t sleep dug out under fence through over fence”. This inference was supported by evidence given by Brenton Lienert (Lienert), a friend of Lorke, who stated that he had been told that the trench was dug on the Friday.

   The fight on the evening of Sunday 10 September 2017

3. On about Sunday, 10 September 2017 Skeyhill, in Lorke’s absence, took revenge for Lorke’s trench digging by digging a hole in Lorke’s lawn and throwing soil at his house and onto his roof. That afternoon, Lorke returned home; he was dropped off at his property by Lienert, who gave evidence that upon their arrival he and Lorke noticed the damage and Lorke said that he believed that it had been caused by Skeyhill. When Skeyhill in turn arrived home later that evening, Lorke confronted him over the hole in his lawn and a fight ensued (the 10 September fight). The fight was witnessed by the neighbour Ronald Burton who gave evidence that he observed words exchanged between the men as they stood on their respective sides of the fence. Lorke threw a punch which struck Skeyhill in the face, causing a stubby of beer to fall from his hand. Skeyhill then threw a retaliatory punch which connected with Lorke. Further punches were exchanged. Lorke then walked away, returning to his house. Lorke sustained a cut above his right eye during that fight but it is not clear whether Skeyhill was injured.[2]

   [2]    An entry in the notebook under the heading “10 September Sunday” supports Burton’s account. It reads: “home at about 5.30 pm. ATTACKED in Driveway ranting + raving. Blows exchanged”.

4. A little later that same evening, Skeyhill reversed his utility vehicle (utility) back and placed timber posts in the trench. Lorke then came back out of his house wielding a spade. Lorke jumped the fence and approached Skeyhill, holding the spade vertically over his head and standing only a few inches from Skeyhill. Lorke was heard to say, “I want to bloody hit you with this”. However, no further punches or blows were exchanged and the situation eventually calmed. Lorke returned to his property by again scaling the wire fence.

   The events following the Sunday 10 September fight

5. Following the 10 September fight, Skeyhill appears to have installed a number of “No Trespassing” signs facing Lorke’s property and a number of floodlights in a row in his carport, each facing Lorke’s house.

6. At about the same time, Skeyhill appears to have purchased and installed at least one small, self-contained security or ‘trail’ camera. In the notebook Skeyhill recorded the following entry: “Set up camera. about 6.30 pm hung sighns [sic], installed security lights. locked doors”. This entry appears to follow on from the entry on Sunday 10 September 2017. There was suggestion at trial that more cameras than one were involved and I return to this topic below in the context of Grounds 2 and 2A of Appeal.

7. On Monday, 11 September 2017, Skeyhill saw what appeared to him to be a gun lying against the hot water service on Lorke’s property. A note to that effect was recorded by Skeyhill in the notebook headed “Monday 12.35”: “SKS by hot water service”. A further entry on what appears to have been the same date, headed “Monday Night 7.30 ish” recorded: “Checked camera and moved, No Footage of SKS. 8.10 Flat Battery on camera try again tomorrow”. Clearly, Skeyhill thought that the gun was an SKS assault rifle but in fact, as the evidence at trial demonstrated, it was only an airsoft gun (an air gun capable of propelling plastic pellets) and looked somewhat like a camouflaged Colt AR-15 rifle.

8. On Tuesday, 12 September 2017, Lorke took steps to modify the wire fence by putting short strips of corrugated iron into the ground along the fence line on his side. Lorke took photographs of the corrugated iron. It appears that later that day, Lorke and Skeyhill were again involved in an argument over the fence. A written entry in the notebook headed “Tuesday 7.30 – 800” recorded: “Words over fence yelled out at @ 9.00 ‘Dickhead come here’ ??”. The fence argument here referred to was not seen by any of the witnesses who gave evidence at trial.

   The death of Skeyhill on the evening of Wednesday 13 September 2017

9. Three persons who were present in the area at the time of the stabbing on the night of 13 September 2017 gave evidence, to which I now turn. 

   The evidence of Philip Rollond

10. Prior to his death, Skeyhill had been a wool classer. On Wednesday, 13 September 2017, he worked at a shearing shed with, amongst others, his friend and employer, Philip Rollond (Rollond) who was a shearing contractor.

11. Rollond gave the following evidence. On that day, he and Skeyhill worked until between 2.00 pm and 3.30 pm when they ceased because the sheep were wet. They commenced drinking in the shearing shed, each consuming between three and four stubbies of beer, before moving to the Mannum Hotel where they each consumed between three and six schooners of beer. They then moved to the Palmer Hotel where they consumed more beer; while there, Skeyhill suggested that they should return to his property and check the cameras because he had been concerned about the “gun” he had seen on Lorke’s property. Rollond then drove them back to Skeyhill’s house. On the drive back, he stopped the vehicle to urinate, during which time Skeyhill smoked some cannabis.

12. Rollond testified that he and Skeyhill arrived at Skeyhill’s property at about 10.00 pm. Only the two of them were present. Skeyhill observed something in his yard and said, “The cunt’s in my backyard”. He then stepped out of the vehicle and crossed the fence into Lorke’s property. Rollond, who was at that stage still in his vehicle, could not see anyone else. As Skeyhill crossed the fence, he was saying, “What were you doing in my yard?”

13. Rollond testified that by the time he got out of the vehicle, he could not see to whom Skeyhill had been talking or whether he was still talking to anyone. He described the scene as quiet. Rollond crossed the fence into Lorke’s property and shortly came upon Skeyhill who was on the ground wounded with Lorke standing next to him holding a knife in his right hand. Rollond testified that he took a swipe at Lorke and made contact with something, causing exacerbation of an injury he had sustained to his hand a few days prior. He then knelt down and looked at Skeyhill, observed blood coming out of Skeyhill’s mouth and telephoned triple zero.

    Rollond’s two triple zero conversations

14. It is agreed that Rollond telephoned triple zero at 10.22 pm on 13 September 2017.[3] In that conversation, Rollond informed the operator that there had been a “[p]retty serious” stabbing and said (while standing near to Skeyhill in the presence of Lorke), “this cunt’s got a knife on top of, standing on top of this bloke”. He further said that he “just got threatened he was going to stab me…”.

    [3]    Agreed Fact 26.

15. During the conversation which followed, Rollond was asked multiple times for an address. He gave evidence that he was not aware of the number of the property and that he went to the front roadway to find out. Rollond also made various statements that local police in Tungkillo were “fucking useless”. He instructed the triple zero operator that he was on the main road in Tungkillo and eventually requested the attendance of “the detectives”.

16. Rollond testified that after his first triple zero call, he attempted to call his wife, Mrs Jane Rollond, who had previously been a registered nurse,[4] and that he left to collect her and returned with her to Skeyhill’s property at which time he found Sergeant Karen Newman (Newman) attending to Skeyhill. It is agreed that at 10.40 pm SAAS telephoned Rollond, who told the operator that he was two kilometres away from Skeyhill’s address but was going back there. That generally accords with Rollond’s evidence just referred to.

    [4]    Rollond could be heard on a recorded conversation between Lorke and triple zero, which is discussed in detail below at paragraph 23 saying, “Can you get mother out here quick, quick”. He accepted in evidence that it was his voice and that he might have been talking to one of his children.

17. Under cross-examination, Rollond denied looking in Lorke’s windows or doors and denied sneaking around his property. He also stated that he did not see Skeyhill at any time sneaking around or looking in Lorke’s windows or doors.

    The evidence of Mr Ronald Burton and Ms Sallyanne Burton

18. Ronald Burton (Skeyhill’s neighbour referred to above) lived next door to the house in which his mother and sister Sallyanne both lived. Ronald and Sallyanne each gave evidence of observations they made on the night of 13 September 2017 but it is important to bear in mind that neither saw the stabbing of Skeyhill or what immediately led up to it.

19. Ronald Burton gave evidence that on the night of 13 September 2017, at about 9.30 to 9.35 pm, after eating dinner, he walked towards his mother’s house to dispose of his dinner scraps there. While walking, he observed two people in Skeyhill’s driveway. The first person was short; he could not recognise the face in the darkness but presumed him to be Skeyhill (who was short). He noticed a “20 cent piece” size glow coming from the level of that person’s face. The second person was “a taller built person” whom he did not recognise.  He saw the taller male coming down Skeyhill’s driveway down to the footpath.  He then went to his mother’s house to dispose of his scraps.  After being there for about one and a half minutes, he came out and noticed the taller male coming out the back of Lorke’s property and then stumbling back over the fence into Skeyhill’s property. Ronald Burton said in cross-examination that the taller male could have been Rollond, whom he had known all his life. He said that he did not hear any particular noise emanating from the properties across the road.

20. Ms Sallyanne Burton is the sister of Ronald Burton and lived with their mother next door to him. On the night of 13 September 2017, she was at Ronald Burton’s property watching television. She gave evidence that “after 10 o’clock” she was walking down the path from Ronald Burton’s house to her mother’s house when she saw a light on at Skeyhill’s property. She observed two men, who were each holding a stubby in a holder kicking at Lorke’s fence “fairly hard” and stated that she was “pretty sure it was Kevin Skeyhill and his son Nick Skeyhill”.

21. In fact, Nicholas Skeyhill was called at trial and gave evidence that he was not at Skeyhill’s property on the night of his father’s death, was not kicking at the fence and nor had he done so on the Saturday or the Sunday before Skeyhill died. As the prosecution stressed, it was highly improbable that he would have left his father at the scene bleeding to death and during his final address senior counsel for Lorke (no doubt seeking to anticipate what he considered that the jury would find) stated: “You also have the evidence of Sallyanne Burton that on the Wednesday night Kevin Skeyhill and she said Nick Skeyhill - you might think it was Rollond - were in the Skeyhill driveway …”.

    The triple zero conversations in chronological sequence

22. Following the stabbing, there were four triple zero conversations which are relevant in two main ways. The first is to establish time references and a contemporaneously record of certain events which occurred in the aftermath of the stabbing. The second is that the two conversations involving Lorke contain relevant statements made by him and this second matter is considered in detail below. The four calls in chronological order are as follows.

23. The first call was made by Rollond at 10.22 pm as referred to above. The second call was made by Lorke at 10.27 pm. It was immediately apparent that it was he who had stabbed Skeyhill in that Lorke stated: “I got accosted by 3 … blokes. One of em’s my neighbour, and I’ve hurt him pretty bad … he sort of charged me, mate, and I fucking gave it to him…”. Later, Lorke can be heard to call out to Rollond “You want to check him out ‘cause he’s your mate”, to which Rollond replies “Is he alright?”. The third call was made at 10.31 pm by a South Australian Ambulance Service (SAAS) operator who telephoned Lorke back. He gave Lorke instructions on how to perform cardio pulmonary resuscitation (CPR) and asked questions as to the state of Skeyhill’s wounds. Lorke can be heard calling out to Rollond, asking whether Skeyhill was breathing to which Rollond replied, “No, mate”. Rollond can be heard in the background saying (in a different phone call) “Can you get mother out here quick, quick”.[5] Lorke can then be heard to call out to Rollond again, “Shouldn’t have been on my fucking place”. The fourth call was made at 10.40 pm when SAAS telephoned Rollond as referred to above.

    [5]    Rollond gave evidence that he was speaking to one of his children at this stage.

    The prosecution case theory

1. The prosecution case theory at trial was that Lorke, against the background of hostility referred to above, found Skeyhill and Rollond on his property without permission, lost his temper and deliberately stabbed Skeyhill with the intention of at least inflicting grievous bodily harm or being reckless thereto. The prosecution version of events, based chiefly on the evidence of Rollond (but also drawing on the evidence of Burton and Sallyanne) was briefly as follows:

   -That apart from Lorke, only the two men Skeyhill and Rollond were present, having arrived at Skeyhill’s property in Rollond’s vehicle.

   -That Lorke prepared himself to be outside in the cold by dressing in warm clothes, including a beanie. He had armed himself with the airsoft gun and his large hunting knife (which had a blade just under eight inches in length and which must have been unsheathed at some time prior to the wounds being inflicted upon Skeyhill).

   -That Skeyhill was shouting as he exited the vehicle and scaled the fence into Lorke’s property. He was not stalking or moving stealthily.

   -That Skeyhill walked up to Lorke, berating him about his presence in Skeyhill’s property.

   -That as Skeyhill continued to approach him, Lorke “fucking gave it to him”; he stabbed and/or slashed at him, inflicting multiple wounds to his chest, head and arm, without any attempt to warn him that he would inflict such injuries if Skeyhill continued to approach him.

   -That after Skeyhill fell to the ground, Lorke dragged him up the driveway to where he telephoned triple zero for assistance and attempted to resuscitate him.

   The defence case theory

2. Lorke elected not to give evidence. Nevertheless, a case theory was put to the jury based on certain of his statements made in the triple zero calls and to Newman, together with certain aspects of the evidence given by the Burtons and, to a certain extent, Rollond. The theory was essentially as follows.

   -That Skeyhill was worked up about the dispute he had been having with Lorke and had been talking to his friends, Clothier and Rollond, about the incident for some time.

   -That Skeyhill had retaliated by throwing dirt on the roof of Lorke’s property and they had had the 10 September fight.

   -That on Wednesday 13 September 2017, Lorke had arrived home alone shortly before Skeyhill and had attended to household chores. That at around 10.00 pm, Skeyhill and Rollond arrived at Skeyhill’s property and one of them turned on the floodlight in the carport.

   -That Skeyhill and Rollond then stood in Skeyhill’s driveway and, while holding stubbies, began kicking hard at the corrugated iron strips Lorke had placed at the fence line.

   -That Skeyhill and Rollond were intoxicated and therefore disinhibited, likely to be aggressive, impulsive and reckless.

   -That Lorke, at that time still inside his house, heard noise which he thought came from his roof, but probably came from his fence line. That he then went outside armed with his airsoft gun and large hunting knife and saw two (possibly three) people. 

   -That Rollond and Skeyhill, after kicking at the fence, went in separate directions.

   -That Rollond walked around the front way and up to Lorke’s front door.

   -That Skeyhill scaled the fence and went up to the shed with his phone light to have a look in that area.

   -That Rollond then walked back around the house and tripped over the fence on his way back into Skeyhill’s property.

   -That Skeyhill then confronted Lorke on Lorke’s property and began moving towards him. That Lorke was waving the knife in front of him while moving backwards away from the drunk, stumbling Skeyhill.

   -That Skeyhill was not deterred by the knife and continued to approach Lorke, perhaps ducking his head and thereby sustaining some incised injuries, and continued to be “up at” Lorke.

   -In these circumstances Skeyhill received the mortal stab wound.

3. The appellant particularly relied upon the following portion of the cross-examination of Rollond concerning the deceased walking forward and Lorke walking backwards just before the stabbing:

   Q     It appeared to you, didn’t it, that there was, when Kevvy went down, there was someone else there and you said, didn’t you, in your statement to the police that it appeared that whoever was there was going backwards.

   A     That’s what I recall, yeah.

   Q     You said on 17 October 2018 you said this, didn’t you, “I saw Kev get over the fence, he went over pretty quickly.  At that stage I hadn’t seen anyone else but it appeared whoever was there was going backwards”, is that what you told the police.

   A     When Kevvy was up at him, whoever it was, he was going backwards, yes.

   Q     Kevvy was up at him.

   A     Yes.

   Q     So just before he went to ground Kevvy was advancing on the other person who was backing away, is that correct.

   A     That is what I remember.

4. The jury rejected the defence case theory and convicted.

   PART TWO: SELF-DEFENCE (GROUNDS 1 TO 4 OF APPEAL)

5. The further amended Grounds 1 to 4 of Appeal are as follows:

   Ground 1

   1.    The conviction was unsafe and unsatisfactory and cannot be supported having regard to the evidence.

   Ground 2

   2.    The trial judge’s directions in relation to the evidence about the disappearance of the cameras set up by the deceased (Summing Up, pp98 and 104) undermined the burden of proof and consequently amounted to an incorrect direction on a matter of law (the burden of proof) and give rise to a miscarriage of justice.

   Ground 2A

   2A   The judge erred in directing the jury that the evidence about the disappearance of the cameras was inconclusive, thereby tending to remove from the jury’s consideration the critical aspect of the evidence about the cameras to the defence case, namely the effect of that evidence on their assessment of the credibility and reliability of the witness Rollond.

   Ground 3

   3.    The trial judge erred in law in failing to direct the jury in relation to the impermissible uses of the evidence that the applicant was in possession of an unregistered firearm.

   Ground 4

   4.    The judge’s directions about the various aspects of the defence of self-defence were deficient in that the judge did not assist the jury by relating the directions to the evidence in the case.

   Although the judge correctly directed the jury that if the accused genuinely believed that the act which killed the deceased was necessary and reasonable in his own defence, the prosecution would have not excluded the defence of self-defence, he did not point out to the jury those aspects of the evidence which might have assisted them in assessing the accused’s state of mind.

6. The law as to self-defence in South Australia is set out in s 15 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) which provides as follows:[6]

   [6] There is an alternative defence in South Australia commonly referred to as ‘defence of property’ which appears in s 15A of the CLCA and provides a complete defence to a charge of murder if the conduct is reasonably proportionate and a partial defence if the conduct is not reasonably proportionate. This defence was left to the jury and was not the subject of a Ground of Appeal.

   (1)     It is a defence to a charge of an offence if—

   (a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and

   (b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.¹

   (2)     It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—

   (a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but

   (b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.²

   (3)     For the purposes of this section, a person acts for a defensive purpose if the person acts—

   (a)in self defence or in defence of another; or

   (b)to prevent or terminate the unlawful imprisonment of himself, herself or another.

   (4)     However, if a person—

   (a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or

   (b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,

   the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.

   (5)     If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

   Notes—

   1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.

   2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.

7. The Judge fully directed the jury (orally and in an aide-mémoire) concerning the defences of self-defence and defence of property (which I will usually refer to compendiously as “self-defence”). There is no complaint on appeal that any of these directions as to the law were incorrect.

   Ground 1 of Appeal – Verdict unreasonable or cannot be supported

8. Although Ground 1 was couched in the terms set out above, the appellant’s written submissions introduce this ground by the heading “Verdict unreasonable or cannot be supported” with the first paragraph stating: “The appellant contends that the verdict of guilty of murder is unreasonable or cannot be supported having regard to the evidence”. The appellant accepts that the precepts referred to in M v The Queen,[7] and the subsequent High Court decisions in which that decision has been considered, govern consideration of this ground.

   [7] (1994) 181 CLR 487.

9. However, the present case is a little unusual in that the appellant here does not suggest that the finding of proof of either the actus reus (a voluntary act of stabbing which caused the death of the deceased) or the required mens rea (an intent to cause death or grievous bodily harm) cannot be supported having regard to the evidence. Rather, the appellant’s submission is restricted to the proposition that it was not open for the jury to find beyond reasonable doubt that the prosecution had negatived a defence of self-defence such as would reduce the verdict to one of guilty of manslaughter rather than murder. Thus the appellant contends in writing:

   26. The appellant submits that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant did not genuinely believe that the conduct to which the charge relates was necessary and reasonable for a defensive purpose.

   27. If it is accepted that the jury ought at least to have entertained a reasonable doubt as to whether the appellant’s own account was a reasonable possibility, the jury would still have needed to determine whether s 15C of the CLC Act (home invasion) applied and, if not, whether the actions of the deceased were objectively proportionate to the threat as he perceived it. The appellant accepts that these issues were such that it could not be said that a verdict of guilty of manslaughter would necessarily have been unsafe and unsatisfactory. Accordingly, if ground 1 of the appeal is successful, the appropriate order would be to set aside the conviction, substitute an acquittal in relation to the charge of murder, and order a retrial on manslaughter only.

   The two lines of argument relied upon by the appellant on Ground 1

10. The appellant chose not to give evidence at trial. Counsel seeks to make good Ground 1 by relying upon essentially two matters. First, the statements claiming self-defence made by Lorke in the aftermath of the stabbing (in the triple zero conversions and in the police interviews). Secondly, an attack on the credibility and reliability of Rollond,[8] including reference to suggested inconsistencies as between the evidence of the Burtons (on the one hand) and that of Rollond on the other. Accordingly, I will consider these matters and then turn to countervailing evidence and circumstances relied upon by the prosecution.

    [8]    Except for one aspect of his evidence said to support the defence case referred to at paragraph 26.

    Statements made by Lorke in the aftermath of the death of Skeyhill

11. Counsel for the appellant emphasises that Lorke made a number of exculpatory remarks during the triple zero calls and his later conversations with Newman which raise a claim of self-defence. Emphasis is placed upon comments such as the following (chronological order):

    -“ … he sort of charged me, mate, and I fucking gave it to him, mate.”[9]

    -“I mean, this is all in the dark and there was people looking in my windows, my doors and sneaking around my place, mate, with boomin’ like, phone light, and stuff, and I got pretty scared, mate.”[10]

    -“I was protecting myself, mate.”[11]

    -“They were stalking me, 2, 3 blokes were stalking around my property in the dark, mate.”[12]

    -“They were all pissed and throwing rocks on my roof.” I said “Who?” He said “Him, Kevin and other blokes, they were on my place.”[13]

    -“A small light, I realise now it was a mobile phone light. I went up to it and had a struggle, I dropped the gun and then I'm not sure, I'm not sure where I had the knife but the light kept coming at me and I waved the knife around in this kind of manner.”[14]

    -“I said ‘You stabbed him?’ He said ‘I didn't know it, he fell to the ground, I just thought he was pissed.’”[15]

    [9]    Lorke’s triple zero call at 10.27 pm.

    [10]   Lorke’s triple zero call at 10.27 pm.

    [11]   Call back from SA Ambulance Service to Lorke at 10.31 pm.

    [12]   Call back from SA Ambulance Service to Lorke at 10.31 pm.

    [13]   First interview with Newman.

    [14]   First interview with Newman.

    [15]   First interview with Newman.

12. However, in order to understand the significance of those statements it is necessary to view them in both their immediate context and also in the context of all of the statements made that night by Lorke.

    Lorke’s first Triple zero conversation

13. At 10.27 pm Lorke telephoned triple zero and the following passage of conversation occurred:

    Q3.    What’s happened?

    A: Er, I got accosted by 3, 3 blokes. One of em’s my neighbour, and I’ve hurt him pretty bad. I’m not sure, mate. Yeah, but we need an ambulance quick.

    Q4.    How have you hurt him?

    A:    Well, er, sorry, mate, I can’t remember at the moment but er…

    Q5.    Alright.

    A:    … yeah, he sort of charged me, mate, and I fucking gave it to him, mate.

    Q6.    Okay

    A:And, er, he’s gurgling a lot and, er, don’t look too good mate. And the other 2 blokes have pissed off. I don’t know where they’ve got but they’re all drunk as skunks, mate.

    Q7.    Alright

    A:    And there’s been a bit of a problem, mate, between him and me with our fence. [Emphasis added]

14. Later in the conversation appears the following passage:

    Q15.  … Can you tell me his name?

    A:Er, Kevin somebody. I think its Skye, something like that. I mean, this is all in the dark and there was people looking in my windows, my doors and sneaking around my place, mate, with boomin’ like, phone light, and stuff, and I got pretty scared, mate. There was 3 of em.

    Q16.  Okay.

    A:I’m alone and yeah, I’m not in the best of health to be honest, mate, you know, I’m … Oh, he’s talking. Well some … Oh no, its someone else. I’ve got the police and ambulance on the way. Alright.

    Q17.  Are you talking to the person who was assaulted?

    A:No, to some other bloke [indistinct] the other ones that were talking to me and harassing me and shit, so, yeah. [Emphasis added]

15. I note the following matters. First, the complaints made by Lorke as to the alleged conduct of Skeyhill and Rollond were quite vague:

    -The word “accosted” in the initial complaint “I got accosted by 3, 3 blokes” is a relatively vague and even mild word, to be distinguished from, say, the word “attack”.

    -And the later complaint made (in response to the question “How have you hurt him?”) was again, a rather vague statement made against a background claim of loss of memory: “Well, er, sorry, mate, I can’t remember at the moment but er…yeah, he sort of charged me”.

    -And the still later complaint “the other ones that were talking to me and harassing me and shit” is so vague as to be virtually meaningless (and was not expanded upon elsewhere).

16. Secondly, however as to the action that he himself had taken, Lorke was quite definite: “I fucking gave it to him, mate”. These words appear to connote a quite deliberate act performed in response to precipitating conduct he claimed had occurred.

    Lorke’s second triple zero call at 10.31 pm

17. At 10.31 pm the South Australian Ambulance Service (SAAS) telephoned Lorke back and the following passage of conversation occurs (with Rollond present for all, or part, of the time at the Lorke end):

    Q4.    Thank you.  Okay, tell me exactly what’s happened.

    A:    Um, at least one stab wound, mate.

    Q5.    So you think he’s been stabbed?

    A:    Yes, I did it.

    Q6.    Right.

    A:    I was protecting myself, mate.

    Q7.    You were …

    A:    They, they …

    Q8.    … protecting yourself?

    A:They were stalking me, 2, 3 blokes were stalking around my property in the dark, mate.

18. Here, Lorke was clearly being asked to justify his assertion that he had stabbed the deceased to “protect himself”. Lorke did not give the previous justification of “he sort of charged me” but rather “They were stalking me, 2, 3 blokes were stalking around my property in the dark, mate”. Thus the justification now suggested is an uncertain and evolving justification of “stalking”; initially in the sense of persons “stalking Lorke” and then, almost in the same breath, in a much broader sense of “stalking around his [private] property”, thereby egregiously trespassing. It is this latter broader meaning which Lorke emphasised very soon thereafter in the following statements he made (addressed to Rollond):

    Q15.  Alright.  I’m organising help for you now.  Stay on the line.

    LORKE

    A:    Yeah, okay.  Shouldn’t have been on my fucking place. 

    ROLLOND

    A:    [Indistinct]

    LORKE

    A:    What the hell were you doing. [Emphasis added]

19. The situation here is that Lorke is talking directly to Rollond at the scene very shortly after the stabbing, with Skeyhill lying right there. Lorke makes no suggestion (to the operator or to Rollond himself) that Rollond had attacked him or had planned to do so. Rather, Lorke expresses continuing outrage that people were present on his property without his permission.

    The arrival of Newman and Lorke’s first police interview

20. At 10.45 pm, Newman, the first police responder, arrived at the scene;[16] her arrival can be heard in the recording of the second triple zero conversation between SAAS and Lorke. Newman gave evidence that she received instructions from SAAS in relation to the CPR process and took over from Lorke the task of performing CPR while Lorke remained kneeled next to them. SAAS arrived shortly after and took over attending to Skeyhill. Newman and Lorke then stood up and had a conversation which she later recorded in notes:

    I said ‘Darren, what happened here?’ He said ‘They were all pissed and throwing rocks on my roof.’ I said ‘Who?’ He said ‘Him, Kevin and other blokes, they were on my place’. [Emphasis added]

    [16]   Agreed Fact 31.

21. Newman testified that shortly after she began questioning Lorke, the conversation was briefly interrupted by Rollond and his wife Jane arriving at the scene. Newman directed them to stay back and other officers tended to them. Newman then resumed her interview with Lorke thus:

    I said ‘… so what happened?’ He said ‘They were in my property, one down the front and one up the back. I went inside and got my fake gun, a BB gun and came back out, there was a light up the back of my place.’ I said ‘What light?’ He said ‘A small light, I realise now it was a mobile phone light. I went up to it and had a struggle, I dropped the gun and then I’m not sure, I’m not sure where I had the knife but the light kept coming at me and I waved the knife around in this kind of manner.’ He showed me a slashing back and forth manner. [Emphasis added]

1. A number of important matters may be noticed.

2. The first matter is that Lorke was once again essentially complaining of general trespassing, with a suggestion of rocks being thrown on the roof, rather than fear of personal attack. (The rocks aspect was debunked by the prosecution at trial in leading evidence that police inspected the roof and no rocks were found).

3. The second matter is that Lorke is here asserting that there were at least four men on the property if the words “and other blokes” is restricted to only two blokes; and at least five men if “and other blokes” means more than two. This is a distinct advance from earlier claims of 2, perhaps 3. It is also to be observed that when Lorke does attempt to say what the men on the property were doing, he refers to two only: “They were in my property, one down the front and one up the back”.

4. The third matter is that Lorke here claims to have “had a struggle” after which the light kept coming, with the stabbing occurring only after a continued advancing of that light. The precise nature of this alleged “struggle” is not stated. The contrast with his original assertion “he sort of charged me, mate, and I fucking gave it to him, mate” appears patent.

5. During the course of her evidence, Newman was asked to indicate to the jury how Lorke had demonstrated to her, first, the slashing movements and, secondly, the following thrusting movement (which no doubt corresponded to the fatal stab wound). She gave the following evidence:

   QI will stop you there and ask you to stand up please and show us how the accused demonstrated this movement.

   A     He showed me a slashing back and forth (INDICATES).

   Q     Did he use his right or left hand if you can remember.

   A     I have got in my notes ‘right hand’.

   QYou have indicated a movement approximately waist height, across his body back from left to right and back again, is that right.

   A     Yes.

   …

   Q     Please sit down and tell us what else was said.

   A     ‘And then I went like jab’ and he motioned forward a jab motion.

   Q     Again, can you show us that.

   A     He just showed a forward jab motion (INDICATES), with his right hand.

   Q     That was one forward motion, again at about waist height, is that right.

   A     Yes.

   QDid the conversation continue and have you recorded any further words that were passed between you.

   AYes I said ‘You stabbed him?’ He said ‘I didn’t know it, he fell to the ground, I just thought he was pissed. The guy was still at my front gate, I yelled at him to come and get his mate. I dragged him here and then realised there was blood.’ [Emphasis added]

6. In the italicised passage immediately above, Lorke makes the claims that first, he did not know that he had stabbed Skeyhill; secondly, that when Skeyhill fell to the ground, Lorke thought it was because “he was pissed”; thirdly, he then dragged Skeyhill to the front gate and it was only when he saw blood at that stage that he realised that there was anything amiss.

7. That appears to be a rather dubious story standing on its own; and the more so when one contrasts it with what Lorke had earlier said in the first triple zero call: that “he sort of charged me, mate, and I fucking gave it to him…”.

8. Newman further testified that she had asked Lorke “Where’s the knife?” and he then lifted up his top, showed that he had the knife inside of the sheath which was wedged in between his pants and his body, and handed the knife, in its sheath, to Newman.

9. Newman gave further evidence that Lorke then recounted that Skeyhill had assaulted him a couple of days prior, causing him an injury which he indicated on his forehead.

   Lorke’s second police interview commencing about 11.30 pm

10. At 11.28 pm members of SAAS advised Newman that Skeyhill was deceased and, at around 11.30 pm, Newman re-interviewed Lorke under caution. The interview was recorded on video and tendered at trial. During the interview, Lorke told Newman that he returned home at 9.30 pm that night, observed that Skeyhill was not home and was attending to various tasks inside. His account continued:

    A:And, er, [indistinct] I was sitting round here having, yeah, [indistinct] watching a bit of tv, feeding the cat and doing what I have to, ‘cause I haven’t been home for most of the day and, er, and then, oh, I don’t know, it’s a guess, it’s a guess, 10 o’clock-ish.

    Q25.  Yeah.

    A:… er, I saw the light go on next door and then I heard them throwing stones on my roof, and throwing other things over here, you know, and then saw 2 shadows of people walking up the driveway, through my lounge room window, where you can sit this light [indistinct]. 

    Q26.Yeah.

    A:Okay, so, um, then I could hear a bit of yelling and stuff, talking and ‘cause been a bit of a dispute before and he’s assaulted me only a few days ago, and stuff, and, and, and, er, coming [for] my property and stuff when I wasn’t here, yeah, er, so I knew there was something wrong.  But, anyway, um, but anyway, er, came out.  I heard that noise and I thought there was something going on, there must be something going on, right, so I came out with my, it’s a, er, replica gun, it’s a BB, and [sic] old BB gun, you know.  I’ve had it for many, many years.

    Q27.Right.

    A:And, and then knife I gave you I had with me, ‘cause of the threats and everything else, and I’m scared shitless.  Anyway, and, and I knew there were people around here, alright.  I could hear them, I knew there was at least 3 people, at least 2 but probably a third, so I came out here.  It was all dark.  I couldn’t see absolutely, hardly anything at all other than the bit of light shining up there.  It was really dark and I hadn’t really adjusted much to [the light yet] and I came out and I walked up to, oh, round about where that tree is up there, just up, up there.

    Q28.Yeah.

    A:Yeah, and I was just standing there, watching …

    Q29.Yeah.

    A:… and saw Kevin over there doing something, and then I saw a guy walk around the side of the house here, my house.  He come up here, he come up to my window and he stood, he’s looking in me window, and then he, you know, all quiet, all quiet and stuff where he was looking in my window and that, and then he went to my door, and I don’t know what he, quite, exactly what he was doing at the door.

    Q30.Right.

    A:Right.

    Q31.So where were you still?

    A:And that is that Rowlands [sic].

    Q32.Yeah.

    A:Alright?  Phil is it?  Phil Rowlands [sic], that was him, I can identify that, that guy was him, yeah, and then he went on back around there, and he didn’t see me, and then in the meantime I’d slowly crept down and he had no idea I was there …

    Q33.Right.

    A:… apparently, because they were drunk as skunks, you know.  You can find out that.  And, er, so I followed him around to see what he was doing, going around in front of me house and around to the other side of the house.  I followed him around and then I think it was him that tried to jump over the fence, right, and then I came back around here, and dark as hell, and I saw a light, just a little, like a phone light …

    Q34.Mm hmm.

    A:… which is what it end up being, up in the shed there, so I started walking up there, and then the light started coming towards me.  And I couldn’t see anything other than the light at this point, and I’ve had that imitation gun in me hand, and then the light basically charged me, and by the time I thought it was, you know, sort of, you know, right against me, I just swung the imitation gun and that got knocked out of me hand.  It’s only plastic.

    Q35.Mm hmm.

    A:And, er, I can’t remember how or why [indistinct] the knife come, and somehow the knife is in my hand and I just wildly, sort of, just swung it, tried to, you know, just hit with the fist.

    Q36.Yeah.

    A:And, er, I don’t know, this bit’s getting a bit hard to remember exactly what happened. And, er, I think I might have, you know, I think I did go like this or something, yeah, one time.  [demonstrating a low, forceful stabbing motion with his right hand] I think only once.  I’m pretty sure about that.  Um, and then, er, I realised it was him and he fell down on the ground.

    Q37.  Right.

    A:And then I, er, I think I got down and, ‘cause I’ve had a couple of drink myself.  Not a lot but, you know, er, and I’ve got the flu and bla bla bla, um, and I think I got down, sort of, looked at him and realised it was him and I said, oh, I said something to him like, ‘What the hell are you doing on my property?  You bloody [here vandalising, you tryn’a]’, or something like that, you know.  ‘Cause he’s vandalised my, he vandalised my property a few days ago.  I’ve got pictures and everything of it, yeah.  And then I realised he was bleeding, I think, at that point, just, I saw a bit of blood somewhere in his face so I thought I’d just sort of hurt him.  And he was, he was, he was, sort of, he was moving [his eyes] and he was breathing, and he was talking.  He was saying something.  I couldn’t really understand what, it might have been just mumble, so I thought he was okay so I yelled to his mate to come and get him.

    Q38.  Right.

    A:Yeah.  And so I started to drag him down and didn’t realise how hurt he was.  [indistinct] I couldn’t see any major injuries.  And I started dragging him down and I was yelling to his mate to come and get him, and then I realised that something was pretty wrong, and [he’d], and I yelled to his mate, ‘You’d better ring [the bloom’n ambulance] and the police as well.

11. At least two matters may be noted in this version. First, there is the remarkable transformation from his initial statement “he sort of charged me, mate, and I fucking gave it to him…” to the claims at A35 that, first, he had tried to hit the deceased with his right fist (despite the somewhat awkward presence of the large hunting knife that happened to be clasped in that very fist) and, second, he has no idea how he came to be holding that unsheathed knife in his fist.

12. The depth of that contrast is further emphasised by Lorke’s concurrent claim at A36 that he has real problems with his memory about all of this crucial aspect of his story:

    A36 And, er, I don’t know, this bit’s getting a bit hard to remember exactly what happened. And, er, I think I might have, you know, I think I did go like this or something, yeah, one time.  [demonstrating a low, forceful stabbing motion with his right hand] I think only once.  I’m pretty sure about that.  Um, and then, er, I realised it was him and he fell down on the ground.  [Emphasis added]

13. Thus it would seem that Lorke remembered nothing as to how he happened to draw the knife from its sheath (and nor does he say how it happened to get back into its sheath where it was when Newman later spoke to him).

14. It may also be noted that Lorke asserted in A37 that he noticed blood while Skeyhill was still in the position where he had fallen to the ground and before Lorke started to drag him to the front gate. This is to be contrasted to his previous version that it was only after he had dragged him to the front gate that he saw any blood and realised that something was amiss.

    A general attack on Rollond’s evidence

15. At trial and on the appeal, the appellant attacked the credibility and reliability of Rollond on a number of bases. The first was that he was significantly affected by the alcohol he had drunk and it may certainly be accepted that that is borne out by his appearance on the video recording taken by police at the scene and the evidence given by Newman and Britton of their observations of his high state of intoxication.[17] Second, counsel also rightly observed that Rollond was unco-operative and disrespectful with the attending police. Rollond indeed quite openly stated that he did not like police in general and that he thought that the local police were incompetent; he wanted to deal with ‘professional’ detectives from Adelaide.

    An attack on Rollond’s evidence based on asserted inconsistency between his evidence and that of the Burtons

    [17]   Counsel stressed the BAC reading of .20, being four times the legal limit for driving. That is true so far as it goes, but one must always remember (as the defence witness Professor White emphasised) that the effect that a particular reading will have on a particular person will depend inter alia on that person’s tolerance to alcohol. Here, the jurors were quite entitled to take the view that shearers may regularly drink beer.

16. In short form, Rollond’s evidence is that after their arrival, Skeyhill left the vehicle, went over the fence, apparently confronted Lorke and was then stabbed, all of this happening in a short period of time. On the other hand, Lorke’s account as given to Newman was that the events took significantly longer.

17. On the hearing of the appeal, senior counsel for Lorke sought first to rely upon Sallyanne Burton’s evidence that she saw two men in Skeyhill’s driveway kicking at the fence forcefully, one of whom was Skeyhill. This, the defence stated, was inconsistent with Rollond’s evidence that Skeyhill had quickly gone onto Lorke’s property after alighting from the vehicle.

18. Secondly, counsel relied on Ronald Burton’s evidence that he saw a man (whom he accepted could have been Rollond) tripping on the fence on his way back into Skeyhill’s property which, counsel submitted, aligned with statements made by Lorke in his interview with Newman to similar effect.

19. Thirdly, counsel relied on Ronald Burton’s evidence that he saw one of the men on Skeyhill’s driveway with a light at face level. When police arrived, there was a mobile phone with the torch light activated located next to Skeyhill’s body. The defence submitted that, on Rollond’s version, there was little time for Skeyhill to activate his mobile phone torch, further supporting the proposition that Skeyhill had not moved with the haste Rollond suggested. (I must say I find this particular submission quite unpersuasive in that it would likely have taken only a matter of a second or two; in any event, the jury had the argument before them).

20. Counsel submitted that the cumulative effect of these matters was to discredit Rollond’s evidence such that the jury could not reasonably have rejected the defence version as a reasonable possibility.

21. In my view, on correct analysis, even if the jury were to have accepted the Burtons’ evidence and rejected Rollond’s corresponding evidence, such would not have advanced the defence case a great deal. Ronald Burton’s evidence was that Rollond and Skeyhill arrived at the property and were standing for some time on Skeyhill’s driveway; and Sallyanne Burton’s evidence was that at some stage they were kicking at the fence. While it is true that this evidence was inconsistent with Rollond’s evidence that Skeyhill alighted from the vehicle and immediately scaled the fence into Lorke’s property, it says nothing as to the events immediately leading up to the stabbing or how the stabbing itself was carried out. Neither Ronald Burton nor Sallyanne Burton saw the stabbing; indeed, neither saw Lorke at any stage that evening. At best for the defence, their evidence showed that Rollond and Skeyhill were drunk and up to some mischief at the fence line; but it could never have established that Lorke was under an attack by them or that there was a “home invasion” (to be discussed in more detail below). 

22. Further, it is to be noted that there is a gap in Ronald Burton’s observations while he was at his mother’s house disposing of his scraps. When he came out again he saw a man (almost certainly Rollond) trip over the fence on his way back into Skeyhill’s property. This is not necessarily supportive of Lorke’s account since Rollond gave evidence that when making the triple zero call, he moved to the front of Skeyhill’s property to locate the number so that he could provide the property’s address. The jury may well have found that the tripping episode seen by Ronald Burton happened after the stabbing and was consistent with Rollond’s evidence.

    The bringing, and the use, of the knife by Lorke

23. There are a number of factors surrounding both the bringing, and the use of, the knife by Lorke which may have assisted the jury in coming to the conclusion that self-defence should be rejected. First, Lorke could have taken only his airsoft gun to be used as a deterrent on the pretence that it was real. Instead, he decided to bring with him a large hunting knife in a sheath which, at the time he confronted Skeyhill, had somehow become unsheathed. Lorke claimed that he was unable to say how that had occurred,[18] but we also know that he had the presence of mind to re-sheath the knife after inflicting the wounds upon Skeyhill (it being on his person in that state when Newman inquired as to its whereabouts). It was open to the jury to conclude that the decisions to bring the knife with him, to unsheathe it, and subsequently to re-sheathe it were all conscious and deliberate acts - as was the process of wounding Skeyhill.

    [18]   Answer 35 in his recorded interview with Newman.

24. Secondly, the pattern of the wounds sustained by Skeyhill is significant. Photographs and a body chart tendered at trial demonstrated at least 13 injuries, many of which were caused by the knife wielded by Lorke. The evidence of Dr Karen Heath, the forensic pathologist who performed the autopsy on Skeyhill, was significant in explaining the injuries and their likely causes. The injuries included the following:

    -a stab wound measuring 36 mm in length to the left side of the chest, which travelled between the skin and the ribs, through the left chest wall, penetrating through the fifth and sixth rib and notching the fourth rib, through the pericardium (the thin fibrous sac surrounding the heart), moving tangentially across the surface of the heart and into the left upper lobe of the lung (injury 1);

    -an incised wound to the left upper arm measuring 50 mm in length (injury 2);

    -a linear superficial abrasion, or a scratch, measuring 135 mm in length on the right side of the check extending into the right upper neck, below the earlobe (injury 4);

    -an incised wound measuring 12 mm in length to the forehead which extended down to the periosteum, the fibrous layer covering the skull bone (injury 5);

    -two punctate wounds measuring 1 to 2 mm in length to the forehead extending to the fibrous tissue just beneath the skin (injury 6);

    -a superficial incised wound of the left forearm measuring 20 mm in length, which involved only the skin and the connective tissue immediately below the skin (injury 7);

    -an incised wound measuring 55 mm in length to the back of the head, extending at the deepest part to the periosteum, which had a 35 mm linear superficial abrasion extending horizontally from the side of it (injury 10);

    -a superficial incised wound inside the flap of the outside part of the right ear (pinna), measuring 10 mm in length (injury 11).

25. Dr Heath gave evidence in relation to each of the wounds described above and stated that they were consistent with having been caused by something with a sharp edge such as a knife. It was open to the jury to conclude that the nature and severity of the wounds inflicted by Lorke were more in keeping with an intention to kill rather than any other intention.

    Conclusion as to Ground 1 of appeal

26. In my view, the evidence in this case entirely consisted of non-technical factual matters, pre-eminently suitable to jury trial. No additional evidence was presented to this Court. The twelve jurors were in a very good position to assess matters, common to mankind, such as intoxication and antipathy towards police officers and to weigh up the true significance of conflict as between the evidence of Rollond and the Burtons (always bearing in mind that neither Rollond nor the two Burtons ever claimed to have seen the actual stabbing). And, of course, it was for the jurors to consider as men and women of the world whether what Lorke said in the aftermath of the stabbing (taking into account that he was not cross-examined in Court[19]) was co-operative, consistent and accurate as the defence would have it or ingratiating, inconsistent and disingenuous as the prosecution would contend. 

    [19]   Mule v The Queen (2005) 79 ALJR 1573.

1. Distilled to its core elements, this case involves a situation, sadly not uncommon, where a person had decided to take a deadly weapon with him with then uncertain intention (perhaps “just in case”) and ultimately uses it in circumstances that happen to arise wherein he should not use it at all, or the mode of use is disproportionate.[20] When all of the circumstantial evidence here is considered as a whole, I am satisfied that it was open to the jury to conclude that the defences upon which Lorke relied were each disproven by the prosecution, and that the prosecution proved its case beyond reasonable doubt. I reject Ground 1 of Appeal.

   [20] The respective two limbs of s 15(1) of the CLCA.

   Grounds 2 and 2A of Appeal – The ‘disappearance’ of the camera(s)

2. During the trial and summing up there was reference to “cameras” possibly having been installed by Skeyhill. Given that police never recovered any cameras (except for one which appeared to be still in its original packaging), it is not possible to know how many cameras, if any, were in fact installed. In light of this ambiguity in the evidence, I will use the term “camera(s)”. 

   The contrasting prosecution and defence cases at trial concerning camera(s)

3. At trial, the prosecution mounted a positive case that camera(s) had been deployed by Skeyhill and that they were removed by Lorke prior to Skeyhill’s death as part of a plan to have it out with Skeyhill in a confrontation in which Lorke would be suitably armed and which, in his view, would be better not filmed. The defence actively resisted that theory, contending first, that the prosecution were not able to prove that any camera(s) were actually deployed and, second that even if camera(s) had been deployed, they must have had been removed by Rollond.

4. No evidence could be led at trial as to the whereabouts of the camera(s) following the death of Skeyhill. However, various witnesses gave evidence (mainly un-objected to hearsay) about having been told about camera(s). I will deal with these witnesses in the order that they gave evidence.

5. Rollond gave the following evidence about the camera(s):

   Q     Did he [Skeyhill] ever mention anything about cameras.

   A     Yes.

   Q     What did he say.

   A     He set up cameras to keep an eye on what was going on.

   QWhen did he tell you that he had set up cameras to keep an eye on what was going on.

   A     From memory, the week before his death.

   Q     Did he tell you how many cameras.

   A     Two.

   Q     Did he tell you where the cameras were.

   AHe told me he was moving them around, and he had one in the back of the old yellow ute.

   Q     Did he indicate where the cameras had come from.

   AHe bought them, I’m not sure whether online or, he bought them from Mount Barker maybe, I think, but I’m not sure where he actually bought them.

   Q     Did you ever see the cameras or the boxes they came in.

   A     He showed me when he got them.

   Q     What did he actually show you.

   A     The cameras in a box, new.

   Q     But you never saw them installed, is that correct.

   A     No.

   Q     Was there a particular reason he gave you for wanting to install the cameras.

   A     Because he was concerned about his neighbour.

   Q     Was there a particular reason he gave you as to his concern.

   A     Coming onto his property.

   QWas there anything he told you that had happened that had caused him particular concern.

   A     Only that the, the water drain and the fence.

   Q     In the days leading up to his death did he mention the cameras in any other context.

   A     No.

6. Rollond gave further evidence that, while he and Skeyhill were at the Palmer Hotel on 13 September 2017, Skeyhill said that he wanted to return home to see if the camera(s) had captured any relevant footage, particularly concerning the gun he had previously seen. Rollond testified that, after Skeyhill’s death, and while still at the scene, he told Detective Glenn Considine (Considine) about the camera(s). Considine was not called to give evidence, apparently because he was unwell.

7. Rollond also testified that after the stabbing he had called a friend, Steve Simpson (Simpson), for support and told him what had occurred. Rollond did not request Simpson to come out, but he did anyway. Rollond testified that he had told Simpson about the camera(s). Simpson gave evidence and testified that he attended at Skeyhill’s property on the night of 13 September 2017, well after the stabbing, after a telephone call from Rollond and that Rollond had told him about camera(s):

   Q     Did Mr Rollond say anything about a camera to you.

   A     Yes, he did.

   Q     What did he say.

   A     He said that Kevin’s camera was in the yellow ute.

   Q     As a result of that, let me clarify, where were you when he said this.

   A     We were up in Kevin’s driveway by then.

   Q     As a result of what Phil Rollond said, did you do anything.

   A     I did, I went over and had a look in the ute and I couldn’t see a camera.

   Q     Had Phil Rollond asked you to do that.

   A     No.

   Q     It follows it was something that you did of your own volition.

   A     Curiosity I guess.

8. Under cross-examination, he stated that he could not recall whether he told police officers about what he had learned from Rollond about the camera(s).

9. Police officers who attended at the scene, including Newman and Britton, gave evidence that they were not told of the existence of the camera(s). Officer Paul Featherstone took over the role as investigating officer after Considine was unable to continue and on 9 November 2018 he and other officers searched Lorke’s property with a view to locating the camera(s). None were found. Featherstone stated that he did not a recall when reviewing Considine’s notes any note to the effect that Rollond had said anything about camera(s) at Skeyhill’s property.

10. Nick Skeyhill, the son of the deceased, gave evidence that he first became aware of the camera(s) when Rollond informed him of their existence a week after his father’s death and that when he, his mother and his sister, Marlee, attended at his father’s property, Marlee located two empty camera boxes which described the contents as “Digital trail camera, easy to use to capture wildlife or yard images” and a third box which contained a hidden camera in a smoke detector.

11. Nick Skeyhill gave the following evidence concerning his efforts to locate the cameras which had been in the two boxes:

    QHave you also tried to find the cameras that would appear to have come from those boxes, the two Trail Motion boxes, P22.

    A     Yes.

    Q     Have you been able to find any trace of them.

    ANo. I - well, ‘trace of them’, I've found double-sided tape that at the time, a week after this had happened, had no dust on the double-sided tape, so I feel that that was put up relatively close to when it all happened.

    QI will ask you to tell us about the tape, but can we be clear; you never saw any cameras attached to the tape or anything of the sort.

    A     No.

    Q     Just tell us where was the tape that didn’t appear to be dirty.

    AIt was on the back pergola of my father’s house. As you’re walking into the driveway from the back pergola it was directly above (INDICATES).

    Q     So you speculate that that might have been where they were attached.

    A     Yes.

    Q     Or one of them might have been attached.

    A     Yep.

12. Peter Raison, the owner of the Mannum Hotel, gave a statement in which he said that he heard at Skeyhill’s funeral that he had some cameras but he did not know anything else about them.

    The Judge’s summing up

13. It is clear that in his summing up, the Judge was chiefly concerned with the prosecution submission that it should be inferred that Lorke had “stolen” camera(s). His Honour said:

    He [the prosecutor] then went on to address you about the cameras. Ladies and gentlemen, Mr Mead addressed you about the cameras, and you will remember the submissions that both of them made about the cameras. Can I say this, and this is a matter for you. Who stole those cameras we do not know. You might think that is a matter of mere conjecture and there is very little evidence one way or the other as to who stole them. In fact, there is no evidence at all. There are just thoughts and suspicions and that is not good enough for this court, ladies and gentlemen. Might I suggest, and might I say it is a matter for you, that the question of who stole the cameras, a suggestion that it was Mr Rollond or a suggestion that it was the accused, really there is not enough evidence to really come to a conclusion about that.

14. Later in his summing up, the Judge directed the jury thus:

    Ladies and gentlemen, he [defence counsel] then addressed you on the question of the stolen cameras. He put a submission that it might have been Mr Rollond. The prosecution put a suggestion it might have been the accused. As I have said, it is a matter for you. My suggestion is we do not know and there is very little evidence on the topic.

    Consideration

15. Those directions satisfied the main defence concern that it might be inferred by the jury that Lorke had “stolen” camera(s) with the inference of premeditation that that connoted. Senior counsel elected not to complain of that direction or to suggest a further direction on the camera(s) topic.

16. I consider that this was an understandable and legitimate forensic choice. If the above directions were to be “opened up” by further directions as to who took the camera(s), then, while the defence wished to nominate Rollond for that role, what was to stop the jury from electing Lorke? Competent counsel would likely have thought that it was best to get rid of the spectre of a deliberate plan made by Lorke well before the stabbing incident and thereby to protect and preserve the core defence case of a man reacting to sudden and unexpected events who should not be judged too harshly for what he did in such a situation.

17. It is also important to note two further matters. First, the Judge made it very clear throughout his summing up, and particularly in the context presently under discussion, that the determination of the facts was entirely the jury’s province and that he was offering a suggestion only. Thus, his Honour, at the commencement of his summing up, directed the jury in the following terms:

    Contrary to my summing on the law [sic], where you must take my directions, you alone are the judges of the facts. That is most important. Being the judges of the facts includes the ultimate question as to whether the accused is guilty or not guilty of any offence. I will be commenting on the facts and as I have said, I will be trying to summarise them for you and put them in some sort of order and I may be able to help you by drawing your attention to some of the more relevant facts. However, you must understand that it is not by role to try and influence you in any way. Trial by jury is not a meaningless phrase. You are the judges of the facts, not me. If I say anything about the facts with which you disagree, ignore entirely what I say and proceed upon your own good judgment. However, I hasten to add that I will certainly not be trying to influence you. My task is to make things as coherent and logical as possible and assist you in coming to a decision.

18. When the Judge dealt with the camera(s) evidence, his Honour suggested that “there is not enough evidence to really come to a conclusion about that”. However, such comments were prefaced by noting that “this is a matter for you”, the jury. Again, in a later passage of the summing up in which the camera(s) was addressed, the Judge stated:

    Ladies and gentlemen, he [defence counsel] then addressed you on the question of the stolen cameras.  He put a submission that it might have been Mr Rollond. The prosecution put a suggestion it might have been the accused.  As I have said, it is a matter for you.  My suggestion is we do not know and there is very little evidence on the topic.

19. The second matter is that the Judge’s directions in no way took the matter of the credibility and reliability of Rollond from the jury. And his Honour’s directions did not remove from the jury the power to draw inferences against the credibility or reliability of Rollond based on other evidence concerning his failure to inform police about the existence of the camera(s). That line of argument remained very much open; his Honour did not suggest that the evidence regarding the camera(s) was irrelevant.

20. I consider that there was no error of law here and that the alternative plea of miscarriage of justice (which I will assume applies to both Grounds 2 and 2A) is not made out. I reject Grounds 2 and 2A of Appeal.

    Ground 3 of Appeal – Possession of the unregistered airsoft gun

21. By Ground 3 of Appeal, the appellant asserts that “[t]he trial judge erred in law in failing to direct the jury in relation to the impermissible uses of the evidence that the applicant was in possession of an unregistered firearm”. The appellant’s written submissions make clear that the error of law asserted is said to be a breach of s 34R of the Evidence Act 1929. The relevant provisions of that Act are as follows:

    34P—Evidence of discreditable conduct

    (1)   In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

    (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

    (b) is inadmissible for that purpose (impermissible use); and

    (c) subject to subsection (2), is inadmissible for any other purpose.

    (2)   Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

    (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

    (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

    (3)   In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

    (4)   Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

    (5)   The court may, if it thinks fit, dispense with the requirement in subsection (4).

    34Q—Use of evidence for other purposes

    Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.

    34R—Trial directions

    (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.

    (2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.

22. The history of the matter was that two days prior to his death, Skeyhill had seen from his own property what he thought was an SKS assault rifle near the hot water service on Lorke’s property. He made a diary entry concerning that matter and, on the day of his death when drinking with Rollond at the Palmer Hotel, he had alluded to it in the context of checking camera footage to see if the gun had been recorded.

23. Left in that state, the matter could have been very prejudicial for Lorke; the jury may have been alarmed at the possession of a (presumably working) military assault rifle. However, that was not the end of the matter because Lorke in his interview with Newman disclosed that he had taken with him what was in effect a replica[21] of an assault rifle (which he had had for a long time) and stated that it had been knocked out of his hand immediately prior to the stabbing. That replica was found at that spot by police and is depicted in situ in the crime scene photographs.

    [21]   The replica was capable of discharging small plastic pellets but was little more than a toy.

24. At trial, the prosecution was prepared to accept Lorke’s word that that replica was what Skeyhill had previously seen and that Lorke had not in fact been in possession of an SKS assault rifle. In all of the circumstances, the replica was admissible in evidence on at least two bases.

25. The first basis was that the replica played a part in the actual stabbing incident as already described and was admissible on that basis, whether or not one chooses to refer to the doctrine of res gestae. It is to be emphasised that the legal obligation in s 34R is only engaged if, in the words of s 34R, the evidence is “admitted under section 34P”. In the present somewhat unusual circumstances, the evidence was not admitted under s 34P because it was never tendered as “discreditable conduct evidence” (and indeed no notice in writing pursuant to s 34P(4) was ever filed).[22]

    [22]   See generally: R v Soteriou (2013) 118 SASR 119; Police v Rosales [2017] SASC 118, [22]–[30]; R v Fleming; R v Maher (2017) 129 SASR 27, [56]–[57]; R v Jones [2018] SASCFC 96, [25]. These authorities are gathered together and explained in R v Pali (2018) 132 SASR 201, [76]–[80].

26. The second basis was to explain that the earlier sighting of what had been thought to be an SKS assault rifle in fact involved a replica only; that of course involved evidence that Lorke not only had possession of the replica on 13 September 2017 but also had had it for some time prior to that so as to explain the earlier sighting by Skeyhill. Of course, the process would have been simpler if the replica had been registered under the Firearms Act,[23] since a certificate showing that the item continuously in possession of the defendant was a replica could have been obtained and tendered before the jury. In the circumstances, the same result was achieved by a suite of agreed facts which would have assuaged any fear by a juror that the defendant may have had a working assault rifle.

    [23]   A replica of this type is required to be so registered.

27. Far from disputing any of this at trial, senior counsel for the defendant actively co-operated in drafting the suite of agreed facts which in ultimate effect showed that even though the replica should have been registered, it had not been (and hence that no certificate could be given); but despite that, the prosecution agreed that Lorke had in fact had possession of this replica for some considerable time and that this was what Skeyhill had previously seen, and not a SKS assault rifle.

28. The above disposes of any suggestion that the Judge committed error of law.

29. However, as I understand it, and despite the wording of the Ground of Appeal, counsel apparently also wishes to submit that the Judge was required to give a direction so as “to avoid a miscarriage of justice”. In this regard, counsel refers to a discussion that occurred in Court about appropriate directions about a variety of topics. When Mr Norman came to the present topic of the replica, he said this:

    MR NORMAN: Perhaps something about the possession of an unlicensed weapon. My friend will have his own views. The only relevance there might be to the likelihood that it had been left out for anyone to see.

    HIS HONOUR: What should I be telling them; not to hold that against him?

    MR NORMAN: I think the fact that it is unlicensed is relevant, but it can’t go to prove the murder. It has very limited relevance in this case. It may go to the issue of the likelihood that it would be left out for it to be seen, or that the accused might have been concerned, for example, if he had been photographed or if the cameras had caught footage of the weapon on his premises. That is something I will tease out in my submissions.

    Certainly the mere fact that he has possession of the weapons, they shouldn’t reason towards a general propensity to violence. I think that would be important in this case.

    Similarly, simply because of the fight at the fence or the previous history of violence between them, that again can’t go to a disposition but it may be relevant in terms of anger and motive.

    HIS HONOUR: No, that goes to the relationship between the parties and states of mind, but as you say, it doesn’t mean he’s guilty of murder though.

    MR NORMAN: No. I think your Honour should repeat, with respect, what has been said about the relationship evidence, the hearsay nature, why it’s admissible and why it’s not. And again, I say this in the knowledge that the prosecution have been very, very flexible in relation to this and this is very much the defence’s agreed position in terms of what evidence should and shouldn’t have gone before the jury, so something regarding that and hearsay generally. 

1. It was very much against the above background that defence counsel did not request further directions of the type now referred to in Ground 5.3. In the trilogy of cases TKWJ v The Queen,[49] Ali v The Queen[50] and Nudd v The Queen,[51] the High Court made plain that when considering asserted miscarriage of justice, an objective assessment of the conduct of the case is required. The following observations of Gleeson CJ in Nudd are representative:[52]

   9. … In TKWJ v The Queen,[53] the appellant complained that evidence of his good character was not led.  This, it was said, was unfair.  In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision.[54] That, in the circumstances of the case, was conclusive.  It is the fairness of the process that is in question; not the wisdom of counsel.  As a general rule, counsel’s decisions bind the client.  If it were otherwise, the adversarial system could not function.  The fairness of the process is to be judged in that light.  The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.

   [49] (2002) 212 CLR 124, 133 [27]–[28] (Gaudron J) (with whom Gummow J agreed), 156 [106]–[108] (Hayne J) (with whom Gummow J also agreed).

   [50] (2005) 79 ALJR 662.

   [51] (2006) 80 ALJR 614.

   [52] (2006) 80 ALJR 614, 618–619 [9].

   [53] TKWJ v The Queen (2002) 212 CLR 124; 76 ALJR 1579.

   [54] TKWJ v The Queen (2002) 212 CLR 214 at [16]; 76 ALJR 1579 per Gleeson CJ; at [26]–[27] per Gaudron J; at [95] per McHugh J; at [107] per Hayne J.

2. In my view, counsel’s course of action in not asking for such a direction was a rational forensic choice and entirely understandable. Such a request may well have resulted in directions that had the effect of highlighting the tenuous nature of Lorke’s position in certain respects which had not been obvious to the jury previously. And, of course, such a request for further directions could easily have prompted a similar “balancing request” from the prosecution, the effect of which might well have sent the position of the defendant spiralling downwards if a more narrow (and correct) ambit of the “home invasion defence” were put by the Judge. 

   Sub-Ground 5.2: Directions concerning joint enterprise

3. Much of what is said above has equivalent relevance to sub-ground 5.2.

4. The matter of joint enterprise as between the deceased and another person(s) to commit home invasion was mentioned in the following discussion prior to the summing up:

   HIS HONOUR: What do I put to the jury, what has to be proved on the balance of probabilities, what?

   MR NORMAN: That the accused genuinely believed that there was a joint enterprise which comprised an attempt to enter or remain in the accused’s place of residence with the intention of committing an offence. That’s an offence to which part 6A of the Criminal Law Consolidation Act applies. It would include an assault or theft …

   So it is an acute distinction, one could technically say well there is strictly no evidence that the door was being opened. There has really only been a suggestion. In fairness to the accused he does say in interview that he believed Mr Rollond was at his front door, looking through a window and doing something at the door, he wasn’t sure what. It is in those circumstances that we really have to concede that the possibility of the serious criminal trespass is a live one.

5. Discussion then turned to various other areas. The topic of joint enterprise in a home invasion was later returned to in the following passage:

   HIS HONOUR: … When we’re talking about home invasion, I think Mr Norman mentioned this, that a home invasion had been committed or was being committed at the time, and I don’t want to go into joint enterprise, but if he genuinely thought that Mr Rollond was part of the deal, that’s enough.

   MR MEAD: Yes.

   HIS HONOUR: We don’t have to talk about whether he’s right or not, but if he just thought there’s another bloke there as part of this show, that’s enough.

   MR MEAD: In my submission, it is, yes.

   MR NORMAN: I agree.

6. Clearly, his Honour was not here saying that he would direct in those particular terms and neither counsel could have been under any such impression. But when one looks at the summing up, it is very much in accordance with the essential meaning of that passage and is very favourable to Lorke. The impression that would be derived from the whole of the summing up (together with the aide-mémoire) was that the three things that Lorke had to prove were in fact capable of proof on the facts before the jury. Thus, his Honour directed:

   Now, if the defendant has proved to you as more likely than not that this was a home invasion, that he believed genuinely that it was a home invasion, plus those other two aspects which are not in dispute, and then that second aspect of self-defence fades away, it disappears.  [Emphasis added]

7. As explained above, the belief of Lorke that “it” was a home invasion was placed very much to the forefront and would likely have been perceived as being entirely consistent with a belief (correct or erroneous) held by Lorke that there was on foot a joint home invasion being carried out by more than one person.

8. In my view, it would have been both foolish and very risky for defence counsel to ask the Judge to direct as to joint enterprise and the required elements thereof. Such directions might well have set up an obstacle that the jury had not previously perceived to exist; and such an obstacle might in fact have been found to be a real problem for Lorke after close consideration by the jury, always remembering that the jury were well aware that Lorke bore the onus of proof here.

9. Counsel’s course of action in not asking for such a direction was a rational forensic choice and entirely understandable. No miscarriage of justice is established by reference to any part of Ground 5. I reject Ground 5 of Appeal.

   Ground 6 of Appeal – Directions regarding the accused’s burden of proof in establishing the ‘home invasion defence’

10. Ground 6 of Appeal is as follows:

    6.The trial judge’s directions in relation to the accused’s burden of proof under s15C of the Criminal Law Consolidation Act were inadequate and gave rise to a miscarriage of justice, in that:

    6.1     the jury was not directed as to how the evidence could satisfy them that the accused believed that a home invasion was being or had just been committed;

    6.2     the jury was not directed that the defence could be established by the accused by the evidence led by the prosecution and despite the accused not leading evidence;

    6.3     the jury were told that the accused could either “give evidence and call witnesses” or “remain silent and argue that the prosecution has not proved their case beyond reasonable doubt”;

    6.4     the accused did not in fact give evidence and did in fact remain silent; and

    6.5 in the circumstances, the jury would, or may well, have been left with the understanding that the accused could not prove the matters he was required to prove under s 15C because he had elected to remain silent. [Original emphasis]

    The group of sub-grounds 6.2, 6.3, 6.4 and 6.5

11. The appellant essentially submits in the group of sub-grounds 6.2, 6.3, 6.4 and 6.5 that the Judge’s summing up would have left the jury with the impression that Lorke could not meet the burden of proof imposed on him by s 15C of the CLCA in the circumstances where he had not given evidence. The passages in the summing up relied upon are as follows:

    In all criminal trials, after the prosecution has presented its case, a defendant can either give evidence and call witnesses, or remain silent and argue that the prosecution has not proved their case beyond reasonable doubt.

    In this case, the defendant has not given evidence and remained silent, but he has called one witness, the expert Dr Jason White.

12. As stated above at paragraph 143, the impression that would be derived from the whole of the summing up (together with the aide-mémoire) was that the three things that Lorke had to prove were in fact capable of proof on the facts before the jury. In other words, the jury would have well appreciated that it was possible for this defendant to discharge his onus in the present case and that the jury’s task was to determine whether he had done so.

13. In summing up, the Judge set out in detail the exculpatory statements made by Lorke in the triple zero recordings and in the two interviews with Newman. As to this material, his Honour specifically directed:

    Now, let me be clear and direct you, that although the defence of self-defence is raised in this case, in a number of ways by the accused, you heard it raised in his statements he made to the police, and you might think it was raised by way of inference on the facts of this case, and the way that it has been presented.

14. Later, his Honour further directed:

    I direct you as a matter of law that the fact that the defendant has not given evidence cannot be used against him and cannot in any way be used to his prejudice.  The fact that he has not given evidence is a right given to him by law and it would of course be absurd if the law were to give him a right, and he has exercised that right, and then he was allowed to be criticised for doing so.

    You will remember, ladies and gentlemen, he made certain statements to the police at the time and they are clearly before you, and they are material that you can take into account when assessing whether the accused is guilty or not of this crime.  [Emphasis added]

15. And still later, his Honour further directed:

    Ladies and gentlemen, all of that material is before you that I have mentioned in relation to my summing up. You have got the disc of conversations that took place. You have been on a view, you have seen the scene.  You have got agreed facts which indicate that there is a lot of material in this case which is not in dispute and, as far as my summing up is concerned, my final task for you before wrapping up the case and leaving it to you to make your decision is to summarise counsel’s addresses.  [Emphasis added]

16. This, of course, is sufficient to dispose of sub-ground 6.2.

17. But more broadly, the italicised words “when assessing whether the accused is guilty or not of this crime” can only mean “when assessing in accordance with the directions given in the summing up”. The summing up dealt with the prosecution’s task of proving and disproving various matters and the way in which items of material (including evidence of exculpatory statements tendered by the prosecution) could be used when considering whether the accused is or is not guilty of this crime. But it is equally obvious that the portion of the summing up directed to “home invasion” also dealt with the defence’s task of proving matters and the way in which items of material (again including exculpatory statements tendered by the prosecution) could be used when considering whether the accused is not guilty of this crime by reason of the “home invasion defence”.

18. Further, the portion of the summing up directed to “home invasion” and the aide-mémoire were both given to the jury after the close of the evidence and in circumstances where it was known that the appellant had not given evidence. The very fact that such directions were being given obviously conveyed to the jury that this was an important live issue in the case before them – namely a case where the accused had not given evidence. Put another way, the jury would have appreciated that it would have been a complete and utter waste of time for the Judge to give all the directions that he had concerning the “home invasion defence” if in fact that defence had no part to play in the case once it had become apparent that the defendant was not going to give evidence.

19. For all of the above reasons, I consider that sub-grounds 6.2, 6.3, 6.4 and 6.5 approach the border of being frivolous. As for sub-ground 6.1, defence counsel fully addressed on this aspect at trial and the Judge referred to the salient matters, including Lorke’s various statements made after the stabbing and the various issues concerning Rollond and his evidence as discussed above in the context of the other Grounds of Appeal. Once again, counsel did not ask for a further direction. No miscarriage of justice is established.

20. No miscarriage of justice is established by reference to any part of Ground 6. I reject Ground 6 of Appeal. 

    PART FOUR: GROUNDS 5 & 6 DO NOT ARISE FOR CONSIDERATION

21. I have above considered the submissions concerning Grounds 5 and 6 of Appeal as presented by the parties on the appeal.

22. However, while the prosecution did not raise the following matter (for what reason I do not know), I am firmly of the view that the above analysis concerning Grounds 5 and 6 of Appeal is actually quite unnecessary because these Grounds of Appeal simply do not arise for consideration. That is because the returning of the verdict of murder in the present case is explicable only on the basis that the jury found proven that Lorke did not have the genuine belief required by s 15(1). That being so, s 15C was simply unavailable for consideration because it could only be engaged if the prosecution failed to prove that Lorke did not have that genuine belief.

    The decisions of the High Court in Gilbert and Gillard

23. There is nothing in decisions such as Gilbert v The Queen[55] and Gillard v The Queen[56] which precludes the above conclusion. In Gilbert, the availability of a verdict of manslaughter was erroneously not put before the jury; the jury were thus not offered the choice of finding the defendant guilty of manslaughter rather than murder in circumstances where there was a viable case of manslaughter fit to be considered. Callinan J captured the essence of the view of the majority (joint judgment of Gleeson CJ and Gummow J, Callinan J in separate reasons) stating:[57]

    The appellant was entitled to a trial at which directions according to law were given.  It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.

    [55] (2000) 201 CLR 414.

    [56] (2003) 219 CLR 1.

    [57] (2000) 201 CLR 414, 441 [101].

24. In the later decision of Gillard, the jury again convicted of murder where a viable case for manslaughter was erroneously not left to them. Gleeson CJ and Callinan J stated:[58]

    26. In our view, there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law.

    27. This raises the question of the proviso.  Gilbert decides that it is not an answer to the appellant’s argument to point out that, since the jury were properly (albeit conservatively) instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice.  It is unnecessary to repeat the reasons for that. The jury were wrongly deprived of an opportunity to consider an intermediate position. The respondent sought to distinguish Gilbert on the following ground.  One of the counts on which the jury convicted the appellant was one of attempted murder.  In relation to that count, there was no intermediate possibility of manslaughter.  That is so, but the distinction does not answer the problem to which Gilbert was addressed.  If, in relation to the two counts of murder, the jury were (by hypothesis) not properly instructed in the law of culpable homicide, then that could have affected the outcome of the whole trial.  Although the error related directly only to the first and second counts, once it is accepted that the nature of the error is such as to affect the verdicts on those two counts it is impossible to dismiss the possibility that it also affected the verdict on the third count.

    28. The substantial question to be considered in relation to the proviso is that which was considered by the Court of Appeal of Queensland in Gilbert, and upon which that Court divided.  It is whether a jury, properly instructed, would necessarily have returned a verdict of murder. …

    [58] (2003) 219 CLR 1, 14.

    Matters subsequent to the High Court decisions in Gilbert and Gillard

25. It is important to note two developments subsequent to Gilbert and Gillard. First, it was on a number of occasions contended that those decisions required a broad approach in non-homicide cases to available lesser alternative charges being left to juries, irrespective as to how the trial was conducted. That approach was firmly rejected in James v The Queen, where the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) stated:[59]

    23. Gilbert and Gillard are concerned with the consequences of the wrongful neglect of the obligation to leave manslaughter to the jury in any circumstance in which it is open. History and recognition of the gravity of conviction for murder inform the obligation. Gilbert and Gillard do not state any wider principle respecting the obligation to leave alternative verdicts for included offences (including alternative verdicts for offences other than manslaughter on an indictment of murder) or the consequences of the failure to do so.  [Citations omitted]

    [59] (2014) 253 CLR 475, 486 [23].

26. Secondly, it has been contended that the doctrine in Gilbert and Gillard applies to cases where manslaughter was in fact left to the jury, but with erroneous directions. That situation was considered by this Court in R v Suppiah.[60] There, unlawful and dangerous manslaughter was left to the jury, but on appeal the appellant contended that the Judge erred in directing that the element requiring that the act was “dangerous” meant that a reasonable person in the position of the accused would have realised that he was exposing the deceased to an appreciable risk of injury, when it should have been an appreciable risk of serious injury as laid down in Wilson v The Queen[61].[62] The appellant contended that this was material and that, correctly directed, the jury might have convicted of manslaughter instead of murder. Blue J (with whom Kourakis CJ agreed) stated:[63]

    38. The Director concedes the existence of this error by the Judge because it was established by the High Court in R v Wilson that the requirement is that there is an “appreciable risk of serious injury”. However, the Director contends that the error was not material because the jury found the appellant guilty of murder and therefore necessarily found that the appellant deliberately stabbed the deceased and in any event the direction understated the threshold for dangerousness and would not have caused the jury to not bring in a verdict of manslaughter if the jury would otherwise have done so. [Citations omitted]

    [60] [2018] SASCFC 11.

    [61] (1992) 174 CLR 313.

    [62]   Ground 5. Permission to appeal granted.

    [63] [2018] SASCFC 11, [38].

27. Blue J then referred at length to the decisions in Gilbert, Gillard and James (as well as to the previous High Court decisions in Ross v The King[64] and Mraz v The Queen[65]). His Honour then observed:

    52. The appellant contends that the principle articulated by the High Court in cases in which the trial judge erroneously fails to leave manslaughter as an alternative to murder applies also to cases in which the trial judge erroneously understates one of the elements of manslaughter. The appellant contends that the jury may have reasoned that, because it was directed that an element of manslaughter involves a reasonable person realising that he or she was exposing the deceased to an appreciable risk of injury (as opposed to serious injury), a verdict of manslaughter would not be sufficiently serious as an alternative to murder and hence a verdict of guilty of murder should be delivered.

    53. The appellant’s contention is not supported by High Court authority, is contrary to High Court authority, is not the result of the application of the general principles articulated by the High Court and should be rejected.

    54. The appellant’s contention is not supported by High Court authority because the High Court authorities all involve cases in which the trial judge erroneously failed to leave manslaughter or erroneously left manslaughter. While it may be accepted that an erroneous overstatement of one of the elements of manslaughter might (depending on the circumstances) perhaps be similar in effect to an erroneous failure to leave manslaughter, none of the High Court authorities were cases in which there was an erroneous understatement of one of the elements of manslaughter.

    …

    56. The appellant’s contention is not the result of the application of the general principles articulated by the High Court. As noted above, the starting point is that the jury is generally assumed to follow the trial judge’s directions of law. If the jury follows the trial judge’s directions to consider first the more serious charge and finds the defendant guilty thereof, the jury will not reach a less serious alternative or engage in backwards reasoning. Nevertheless, it has been considered that a jury, otherwise faced with the stark alternatives of guilty or not guilty of murder, might take a merciful view if an intermediate alternative of manslaughter is available. This rationale for the pragmatic exception to the general starting point established by the High Court does not apply in a case in which manslaughter is left as an alternative to the jury and the trial judge understates an element of the offence of manslaughter.

    57. It is one thing to recognise an appreciable risk that a jury might take a merciful view if left with an alternative of manslaughter. It is quite another thing to contemplate that a jury would engage in the tortuous reasoning of first assessing the seriousness of the offence of manslaughter by reference to an element being appreciable risk of injury; secondly taking a different view of that seriousness compared to the view it would have taken if the element had been appreciable risk of serious injury; and thirdly bringing in a verdict of guilty of murder rather than manslaughter because manslaughter is not a sufficiently serious alternative offence. It is fanciful to attribute to the jury such a tortuous reasoning process. Moreover it would involve the jury engaging in Machiavellian reasoning.

    [64] (1922) 30 CLR 246.

    [65] (1955) 93 CLR 493.

1. Hinton J delivered separate reasons (with which Kourakis CJ also agreed):

   146. The appellant’s argument may be reduced to the following four propositions. First, as indicated, Gilbert and Gillard are authority for the proposition that an appeal against conviction for murder must be allowed if, on the evidence, there is a viable case of manslaughter and yet manslaughter is not left to the jury, even if the defence did not ask that it be left. Second, in such circumstances the appeal is allowed, despite the verdict and strength of the prosecution case, because “a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences” on the part of the jury cannot be assumed by courts of criminal appeal.[66]

   [66]   Gilbert v The Queen (2000) 201 CLR 414 at [16]–[17] (per Gleeson CJ and Gummow J). Also at [101] (Callinan J).

   … Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.

   …

   147. Third, accepting propositions one and two, and that faced with a choice between guilty of murder, guilty of manslaughter, and not guilty, a jury may, having regard to the consequences of a verdict and the “realities of the matter”, be glad to take the middle course, nothing in the summing up, including instruction as to the elements of the offence of manslaughter, should have the consequence of taking that middle course away from the jury’s consideration in the sense that the jury or members of the jury might be moved not to properly consider such course. Fourth, here the error in the instruction given as to the elements of manslaughter understated the gravity of the alternative such that there is a perceptible risk that the jury or members of the jury might have been moved away from the middle ground as it did not adequately reflect what the appellant had done, would result in inadequate punishment, and would not adequately deliver justice to the victim and his family.

   148. Propositions one and two may be accepted. With respect to proposition two, it is not that the jury returns a perverse verdict ignoring all directions on the burden and standard of proof and the elements of the offence, but that the jury’s satisfaction of an accused’s guilt to the requisite standard can be affected by a consideration of the choices of verdict open, the consequences that flow from particular verdicts, and “the realities of the matter” related to such choices and consequences.

   149. At a high level of generality the third proposition may also be accepted.

   150. As to the fourth proposition the suggestion is that the jury or members of the jury might have considered a verdict of guilty of manslaughter an inappropriate outcome, having regard to the “realities of the matter”, because the offence only required that the unlawful act carry with it an appreciable risk of harm, but might have considered such verdict appropriate had they been told that the unlawful act had to carry with it an appreciable risk of serious harm.

   151. The submission postulates that the jury or members of the jury might consider the understated elements as having the consequence that finding the appellant guilty of manslaughter might inadequately reflect his culpability, might result in an inadequate level of punishment, and might not adequately provide justice for the victim and the victim’s family. The jury or members of the jury would then bring that mindset to their consideration of murder and be less inclined to give proper or any consideration to the middle ground.

   152. The approach is not one that simply has regard to the “realities of the matter”. It is one that descends to a level of critical analysis that cannot be expected of those not trained in the criminal law and the administration of criminal justice. The submission suggests that the jury will travel beyond a consideration of labels and impression or perception to a comparative analysis of culpability evident in the differing elements of the offences and a consideration of the possible penalty imposed in the event of conviction of each in the light of that analysis, before reflecting upon whether such outcomes adequately deliver justice to his victim and family and then determining which outcome is more suitable. All this overlayed on a consideration of the evidence and whether it proves the elements of the charges.

   153. I do not accept that a jury, generally conscious of consequences and having regard to the realities of the matter, will undertake the sort of exercise postulated by the appellant. In my view, the consequences and realities of the matter to which members of a jury might have regard are those commonly understood to be implicit in, an incident of, or to follow from, the verdict. Thus a person found guilty of manslaughter is commonly understood to have unlawfully killed another person. Such person is commonly understood to be less blameworthy than a murderer and to receive a penalty reflecting that lesser state of culpability. It is also commonly understood that manslaughter, involving as it does homicide, remains a most serious offence in the criminal calendar.

   154. In the present case, the jury would not have been aware of the understatement of the test for dangerousness. Bearing in mind the common understanding of the relationship of murder to manslaughter, I do not think that the understatement of the test for dangerousness had the consequence that the jury or members of the jury were precluded from giving proper consideration to the alternative of manslaughter by an unlawful and dangerous act. In my view the error made with respect to the content of the test for dangerousness in the course of the jury being directed on the elements of the offence of manslaughter by an unlawful and dangerous act has occasioned no substantial miscarriage of justice. [Emphasis added]

2. On 13 March 2019, the High Court (Gordon and Edelman JJ) refused an application for special leave to appeal in Suppiah v The Queen.[67]

   [67]   Suppiah v The Queen [2019] HCASL 42.

3. I agree generally with both Blue J and Hinton J and simply add that I do not take their Honours to gainsay the possibility of an appeal being allowed in a case where manslaughter is left, but erroneous directions which substantially limit the jury’s access to such a verdict are given. Rather, as I understand their Honours, it is an evaluative matter of degree.[68] This is particularly emphasised by Hinton J’s observation that the “Gilbert/Gillard” doctrine has its roots in the “realities of the matter” (the way that jurors may commonly reason). Highly artificial arguments based on misdirections of only tangential relevance do not require a Court of appeal to nullify a jury’s verdict of murder on an unrealistic and theoretical basis that the jury might have convicted of manslaughter only. 

   [68]   An analogy may be found in King v The Queen (2012) 245 CLR 588 where the majority (French CJ, Crennan and Kiefel JJ) stated at 611 [55]: “In seeking to instruct the jury that the direction, applicable to s 318 of the Crimes Act, about whether the conduct of the driver was deserving of punishment by the criminal law, was not applicable to s 319, the trial judge did not err in law.  Defence counsel at the trial did not seek a redirection.That judgment, which may have been made for a variety of reasons, informs consideration of the extent to which, taken in context, the direction was likely to confuse or mislead the jury. The direction was infelicitous but did not involve a misstatement of the law.  It was not argued that it in any way qualified the correct direction given by the trial judge in relation to s 318.  The direction given by the trial judge in relation to s 319 did not constitute a departure from trial according to law.  It did not constitute a miscarriage of justice.  That being so, no question of the applicability of the proviso arises.”

   Conclusion concerning the alternative approach

4. I consider that the present case is a fortiori to that of Suppiah. Here, the jury were expressly presented in detail (orally and in the aide-mémoire) with three separate alternative routes to a verdict of manslaughter rather than murder. (And there were no complaints on appeal as to the correctness of any of these directions).

5. First, the Judge directed in relation to s 15(1) (self-defence) that if the prosecution failed to disprove that Lorke held the genuine intent in 15(1)(a), then the worst result for him was manslaughter (with an acquittal of both murder and manslaughter if the prosecution also failed to prove disproportionality under s 15(1)(b)). Secondly, the Judge directed in relation to s 15(1) (defence of property) as to the routes to both a verdict of manslaughter (rather than murder) and a complete acquittal under that provision. Thirdly, the Judge directed in relation to common law “manslaughter by unlawful and dangerous act”, giving the jury a further alternative of manslaughter to murder in the context of matters different to “defence”, namely the matters of the nature of the act(s) performed by Lorke and his accompanying intention.[69]

   [69]   When the prospect of the further alternative of provocation manslaughter was raised, defence counsel expressly requested that that not be put. The Judge, correctly, did not leave it to the jury.

6. It is to be noted that in relation to all of the above alternative routes to a verdict of manslaughter, it was stressed that there was a burden of disproof on the prosecution and no burden on Lorke. In convicting of murder, the jury unanimously found that the prosecution had so disproved beyond reasonable doubt.

7. When one comes to the argument for the appellant in this case, it faces not only an embarrassment of riches in the way of manslaughter availability but also the additional hurdle of a statutory reversal of the legal onus (all being absent in cases such as Gilbert and Gillard and Suppiah). I conclude that the course taken by the Judge in directing in the way he did concerning the “home invasion defence” could not have had an effect (adverse to the accused) on the jury’s decision not to convict of manslaughter rather than murder. 

   Disposition of the appeal

8. No miscarriage of justice is established, either under any particular Ground or by the cumulative effect of all of the Grounds. I would dismiss the appeal.

9. NICHOLSON J:       I would dismiss the appeal and agree with the reasons of Peek J.  However, I add the following caveat. 

10. In order to take advantage of the “home invasion” variation to self-defence, the appellant had to prove on balance, inter alia, that he “genuinely believed the victim to be committing, or to have just committed, home invasion”.[70]  The appellant’s case at its highest was that at the time he stabbed the victim in the yard of and some distance from his residence he had a genuine belief that another person (Rollond) was committing or had just committed a home invasion and that the victim was party to a joint criminal enterprise with that other person to commit the “home invasion” the appellant believed the other person to be committing.  On the assumption that this line of reasoning was open to the appellant, I would reject the “home invasion” related grounds of appeal for the reasons given by Peek J. 

    [70] Subsection 15C(2)(a) of the Criminal Law Consolidation Act 1935 (SA).

11. However, and without expressing a final view, it should not be understood that I accept that this line of reasoning was necessarily available. In my view, there remains a difficult question of statutory construction concerning whether or not the genuine belief required by subsection 15C(2)(a) of the Criminal Law Consolidation Act 1935 (SA) will be available simply on the basis of a joint enterprise analysis or whether the victim themself must actually be engaged in or have actively just participated in the actus reus of the home invasion to which the genuine belief pertains. 

12. One evident purpose underlying section 15C is to relax the strictures of self-defence in circumstances where a resident is confronted with and may have to defend themself against a person actually committing a home invasion or trying to escape after just having committed a home invasion. This was not the situation that, on any analysis, confronted the appellant.

13. Again, without deciding, and by way of further example, it might be thought counter-intuitive that the proportionality limb of self-defence should be ignored and a complete acquittal follow, in a case where a defendant engages with and kills a getaway driver sitting in a car in the street at the time that a co-offender is engaged in a housebreaking offence some distance away. 

14. Nevertheless, the proper reach of the “home invasion” variation is a matter that can be left for another time.

15. DOYLE J:        I would dismiss the appeal, and agree with the reasons of Peek J.