McFarlane v The King

Case [2025] SASCA 113

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MCFARLANE v THE KING

[2025] SASCA 113

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Bond)

2 October 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GRIEVOUS BODILY HARM

The appellant was charged with one count of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’).

On 8 November 2019, the appellant stabbed Paul Tanzer (‘the deceased’) with a pocket-knife to the upper left arm and the right inner thigh. The stab wound in the deceased’s arm penetrated the brachial artery and the stab wound in his leg penetrated the femoral artery, resulting in excessive blood loss which ultimately caused his death.

The two central issues at trial were whether the prosecution had proved that the appellant, at the time of inflicting the stab wounds, was not acting in self-defence and whether he intended to cause the deceased grievous bodily harm. Both issues concerned the appellant's state of mind.

Following a trial by jury, the appellant was found guilty of murder.

The appellant now appeals his conviction on two grounds: first, that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence; and secondly, that there was a miscarriage of justice.

In relation to the first ground of appeal, the appellant contends that on the whole of the evidence, it was not open to the jury to be satisfied beyond a reasonable doubt that the appellant intended to cause grievous bodily harm to the deceased or that the appellant was not acting in self-defence, and that the jury, acting rationally, ought to have entertained a reasonable doubt as to his guilt.

In relation to the second ground of appeal, the prosecution tendered an audio recording of the stabbing incident (recorded by the appellant on his mobile phone). A transcript of the audio recording was also provided to the jury as an aide memoir. It was subsequently discovered that there were words uttered on the recording, allegedly spoken by the appellant ('the new words'), which were not transcribed and which neither counsel nor the trial Judge were aware of, nor averted to during the trial. The appellant alleges this omission was capable of having a material effect on the jury’s consideration of the issues at trial, particularly the question of whether the prosecution had disproved self-defence, resulting in a miscarriage of justice.

Held per the Court, granting permission to…

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McFarlane v The King [2025] SASCA 113
Case
[2025] SASCA 113
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for murder. The appellant, McFarlane, was found guilty of murdering the deceased, with whom he had a long-standing and acrimonious relationship. The prosecution's case was that the appellant deliberately stabbed the deceased twice with a pocket-knife, intending to cause grievous bodily harm, and that the appellant was not acting in self-defence. The defence argued that the prosecution had failed to prove the appellant's requisite state of mind beyond reasonable doubt, suggesting the appellant may have acted in self-defence or without the intention to cause grievous bodily harm. The appeal was heard by Livesey P, David J, and Bond AJ.

The primary legal issues before the court were whether the verdict of murder was unreasonable or insupportable having regard to the evidence, and whether there had been a miscarriage of justice. Specifically, the court had to consider whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant did not act in self-defence and that he intended to cause grievous bodily harm to the deceased. This involved an assessment of the evidence presented at trial, including eyewitness accounts, the appellant's audio recording of the incident, evidence of the appellant's injuries, and the history of animosity between the parties.

The Full Court, in dismissing the first ground of appeal but upholding the second, concluded that it was open to the jury to find the appellant guilty of murder. While acknowledging the deceased's animosity towards the appellant and prior aggressive conduct, the court found that the hostility was mutual, providing the appellant with a potential motive to attack. The court also considered the eyewitness evidence, noting that despite challenges to credibility and reliability, the witnesses' accounts supported the prosecution's case regarding the appellant's actions and intent. The court found that the evidence, when viewed as a whole, did not present a "solid obstacle" to the jury's finding of guilt and that the jury was entitled to reject the defence of self-defence.

The appeal was allowed on the second ground, and the conviction was set aside. The matter was remitted for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, we uphold appeal Ground 2 and allow the appeal. We dismiss Ground 1. We set aside the conviction and remit the matter for retrial. The evidence at trial The deceased and the appellant had known each other for 25 years. They both owned and worked on blocks of land near each other in Andamooka. The prosecution case was that on 8 November 2019, the appellant and the deceased engaged in a verbal altercation during which the deceased knocked the appellant’s mobile telephone from his hand. The appellant went to retrieve his telephone from the ground, and while the deceased was standing over the appellant, and also trying to retrieve the phone, the appellant stabbed the deceased twice with his pocket-knife intending to cause him grievous bodily harm. There was no dispute at trial (nor on this appeal) that the appellant deliberately inflicted two stab wounds to the deceased which caused excessive blood loss and death. The contested issues at trial concerned the appellant’s state of mind when he inflicted the fatal stab wounds to the deceased. On the prosecution case, the appellant was not acting in self-defence and intended to cause the deceased grievous bodily harm. The prosecution adduced evidence at trial from two eyewitnesses to the stabbing incident: Leif Tanzer, the deceased’s son, and Tony Walkington (‘Walkington’), a friend of the deceased. The appellant’s audio recording of the stabbing incident was also tendered at trial and is the subject of appeal Ground 2. In addition, evidence was adduced from a registered nurse at the Andamooka Medical Clinic, Ms Maria Alexander, who treated the appellant. She gave evidence as to the appellant’s injuries and his admission that he stabbed the deceased. Dr Simon Lockwood also examined the appellant at the Roxby Downs Police Station and gave some further evidence as to his injuries. Later that evening, the appellant was interviewed by the police and his record of interview was tendered at trial. The prosecution accepted that the appellant’s account raised the issue of self-defence. Accordingly, the prosecution bore the onus of proving the appellant did not act in self-defence when he stabbed the deceased. As to the criminal investigation, evidence was led of blood pattern analysis and DNA extracted from various blood spots at the crime scene. There was also evidence from a forensic pathologist as to a post-mortem conducted on the deceased, including evidence as to the likely force necessary to inflict the fatal wounds. Finally, there was evidence adduced as to the history of the acrimonious relationship between the appellant and the deceased, including evidence of prior occasions of aggression by the deceased towards the appellant. There was also evidence, more generally, as to the deceased’s purportedly violent character. The appellant did not give or call any evidence. The defence case at trial was that the prosecution had not established beyond reasonable doubt the appellant’s requisite state of mind to prove the offence of murder. Defence counsel challenged the cogency of the eyewitness evidence and emphasised the evidence of the acrimonious relationship and prior aggressive conduct by the deceased towards the appellant. Defence counsel submitted to the jury that they could not exclude that the appellant acted in self-defence when he stabbed the deceased; or alternatively, that he was not intending to cause him grievous bodily harm.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On the other hand, the respondent contends that it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt on the charge of murder. The respondent submits that there was no ‘solid obstacle’ to the jury’s finding of guilt. Consideration Upon an independent assessment of the whole of the evidence, we are satisfied that it was open to the jury to find the appellant guilty of the offence of murder. After having regard to the whole of the evidence and bearing in mind the appellant’s criticisms of the evidence as to the appellant’s state of mind, we have reached the conclusion that it was open to the jury to find that the appellant was not acting in self-defence for the following reasons. First, it is to be accepted that the deceased had a long-held animosity towards the appellant which provided him with a reason to attack the appellant. Indeed, in the weeks and months preceding the stabbing incident, tensions were rising between the two men. Furthermore, there was evidence of previous incidents of aggression by the deceased towards the appellant, and there was evidence of the deceased’s more general violent disposition. However, the hostility between the appellant and the deceased was mutual. Their acrimonious relationship also provided the appellant with a motive to attack the deceased intending to cause him grievous bodily harm. On one view, the evidence of the rising tensions between the two men undermined the defence case that the appellant was simply defending himself when he stabbed the deceased. As the trial Judge observed, the evidence ‘cuts both ways’. Moreover, the meeting between the deceased and the appellant was largely spontaneous. Their interaction that day arose because Leif Tanzer and Walkington happened to observe the appellant standing close to the deceased’s block. Leif Tanzer denied various propositions put to him that he and his father had earlier decided to confront the appellant. He maintained that their decision to confront the appellant was triggered only by seeing him near their block of land. Secondly, as to the direct evidence of the stabbing incident itself, while it is true that the evidence of Leif Tanzer and Walkington needs to be considered in the context of the audio recording (including the new words) and there were various legitimate challenges to the witnesses’ credibility and reliability, both witnesses maintained a version of events which provided material support for the prosecution case. In particular, Leif Tanzer said:a. the appellant was holding the phone in his left hand, and as the phone fell to the ground, the appellant also went to the ground ‘to grab the phone’;b. the deceased bent over the appellant; c. the phone was pushed into the deceased’s face, the deceased deflected it, the phone fell down, the appellant dropped down and grabbed his phone and the deceased then bent over him;d. the appellant took the first swing or swipe (to the arm) and then while the deceased ‘was standing with his legs parted, hunched over’ he saw the second ‘swipe’ connect with the inside of his thigh; e. he did not see the deceased strike the appellant while the deceased was leaning over the appellant; f. he denied the deceased stomped on the appellant; and g. he disagreed with the proposition that the appellant was trying to defend himself, and that the deceased was at all material times the aggressor.