McFarlane v The King - [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 appeal but dismissing Ground 1 and allowing the appeal on Ground 2:
1.As to Ground 1, it was open to the jury to find the appellant intended to cause grievous bodily harm to the deceased when he stabbed him, and that he was not acting in self-defence. It was therefore open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence of murder.
2.As to Ground 2, the failure by both counsel to advert to the new words and the omission of the new words from the trial Judge’s directions on self-defence was significant in the context of the issues at trial. The omission of the new words had the capacity to affect the jury’s reasoning in respect of both limbs of the test for self-defence, and the reasoning of the jury to its verdict, and resulted in a miscarriage of justice.

3. The appeal is allowed and the matter is remitted for retrial.
Criminal Law Consolidation Act 1935 (SA) ss 11, 15, referred to.
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437; Brawn v The King [2025] HCA 20; Brown v The King [2025] SASCA 40; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Director of Public Prosecutions (Cth) v Kola [2024] HCA 14; (2024) 98 ALJR 632; Gateley v The Queen (2007) 232 CLR 208; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Mulkatana and Mulkatana v The Queen [2010] NTCCA 4; Pell v R (2020) 268 CLR 123; Re Clark [2015] NSWSC 1206; R v Chai [2002] HCA 12; (2002) 187 ALR 436; R v Curzon (2000) 1 VR 416; R v Giovannone (2002) 140 A Crim R 1; R v Nehme (No 3) [2024] NSWSC 515; R v NZ (2005) 63 NSWLR 628; R v O’Neill [2001] VSCA 227, considered.

MCFARLANE v THE KING
[2025] SASCA 113
Court of Appeal – Criminal: Livesey P and David JA and Bond AJA

THE COURT: 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 to 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 when he stabbed the deceased.
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 second ground of appeal, the prosecution tendered at trial an audio recording of the stabbing incident (created by the appellant on his mobile phone).[1] 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 new words did not feature in any cross-examination of witnesses and were not the subject of any address by counsel. They did not form part of the trial Judge’s directions to the jury. 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.
[1] Trial Exhibit P19.
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.
Before turning to directly consider the appeal grounds, it is necessary to set out the more significant aspects of the evidence adduced at trial. This may be structured into five main bodies of evidence: the relationship evidence, the eyewitness evidence, the audio recording, the forensic evidence and the record of interview.
The relationship evidence
The deceased and the appellant had known each other for 25 years. There was evidence led of prior acts of alleged violence and aggression by the deceased to the appellant, and to the deceased’s neighbour, Ms Jensen. These included allegations of two minor assaults by the deceased on the appellant in 2017. There were also allegations of the deceased’s family not paying the appellant for excavating work in August 2015, and the appellant spreading rumours about them being bad creditors. Further, in the weeks leading up to the stabbing incident, investigators from the Department of Energy and Mining (SA) had been investigating allegations made by the appellant and Ms Jensen as to the deceased and his family conducting illegal mining operations on Ms Jensen’s block of land and pushing excavated dirt onto her property.
On the other side, there were allegations of the appellant tampering with mining machinery owned by the deceased, and allegations of Ms Jensen stealing $700,000.00 worth of opals from the tray of the deceased’s utility.
There was also evidence adduced of the deceased’s violent and aggressive nature, more generally. The deceased had fought in Vietnam as a mercenary. He had a prior conviction in 1991 for having an unregistered gun. The deceased’s partner, Ms Mordan, gave evidence about various episodes of violence by the deceased towards her and others.
There was also evidence as to the deceased’s size at six foot, three inches tall, weighing 117 kilograms and that his nickname was ‘King Kong’. By contrast, the appellant was five feet, nine inches tall and of a slimmer build.
Eyewitnesses to the stabbing incident
Leif Tanzer and Walkington were eyewitnesses to the stabbing incident. There were several aspects of their evidence which were not in dispute. They are as follows:
·     At around 12:30pm on 8 November 2019, Leif Tanzer and Walkington saw the appellant standing on the border between Ms Jensen’s property and the deceased’s block of land. One or both yelled out to him to leave. Leif Tanzer then drove down the road, told the deceased what he had seen and together they returned to Ms Jensen’s block. Walkington arrived a short time later.
·     The appellant came out to the front of Ms Jensen’s property and walked towards his vehicle apparently intending to leave.
·     The deceased got out of the vehicle and approached him. Words were exchanged during which the deceased knocked the phone from the appellant’s hand.
·     An altercation ensued during which the appellant fatally stabbed the deceased.
·     The appellant ran down the alleyway between Ms Jensen’s house and the shed whereupon Leif Tanzer followed the appellant and assaulted him.
·     Leif Tanzer then took the deceased to the Roxby Downs hospital in Walkington’s vehicle.
As to the precise nature of the altercation between the two men during which the appellant fatally stabbed the deceased, the prosecution primarily relied on the evidence of Leif Tanzer. He said that his father got out of his vehicle, approached the appellant and asked him what he was doing there. They were about an arms’ length away from each other. The deceased said, ‘take this as warning and stay away from our property’. The appellant was on his phone and waved it in the deceased’s face. The deceased deflected the appellant’s hand which was holding the phone, and it fell to the ground. The appellant then dropped down to the ground and grabbed the phone. The deceased also dropped down. Leif Tanzer described the deceased as bent over and hunched all the way over in front of the appellant. He could not see what the deceased was doing while he was hunched over the appellant. Leif Tanzer said that the appellant swiped towards the deceased’s arm, and while the deceased was still hunched over the appellant, swiped a second time towards the deceased’s groin.
Leif Tanzer said that while the appellant was on his knees, he did not see the deceased strike the appellant. He said that he ran towards the two men, whereupon the appellant ran off. He chased him to the gap between Ms Jensen’s house and the shed on the western side of the house. He said that he confronted the appellant who said, ‘you fucken cunts deserve this’. Leif Tanzer said he kicked the appellant in the back causing him to fall over and punched him two to three times to the face. The appellant made two swipes at him. Leif Tanzer said the appellant also threw a rock at him.
Leif Tanzer said he went back to his car where the deceased was bleeding from his arm, and he drove him to the hospital. During the drive to the hospital, he overtook the appellant’s vehicle and, when doing so, moved out and clipped his car.
Under cross-examination, Leif Tanzer’s account changed as to when it was during the altercation that the deceased dropped to the ground. He initially said it occurred after the phone, and the appellant fell to the ground. He later said it was after the appellant swiped the deceased’s leg.
Defence counsel also cross-examined Leif Tanzer about an incident in July or August 2019 when he said Ms Jensen fell from a digger, and sometime later, he found her phone in the dirt, and handed it to police on 29 January 2021. However, Leif Tanzer conceded in cross-examination that this was untrue. Rather, he had seen the phone fall from Ms Jensen’s pocket, immediately took hold of it and kept it for a couple of years before handing it to the police.
Walkington also gave evidence as to the stabbing incident. He said that as the appellant walked to the front of the property where the appellant’s vehicle was parked, the deceased got out of his vehicle and headed towards the appellant. He said the deceased appeared quite annoyed. He said Leif Tanzer also got out of the vehicle. Walkington said that there was a ‘a bit of a scuffle’ and there were ‘two grown men on the floor’.
Walkington said that Leif Tanzer chased the appellant towards the alleyway between Ms Jensen’s house and the shed. Walkington followed them. He said Leif Tanzer struck the appellant to the face hard. Walkington said he saw a knife in the appellant’s hand when he was on the ground with Leif Tanzer on top of him which he kicked out of the appellant’s hand. He then pulled Leif Tanzer off the appellant. Leif Tanzer and the deceased then left in Walkington’s vehicle for the hospital.
Walkington picked up the appellant’s phone and pocket-knife, which he later handed to police. The appellant’s phone contained the audio recording of the stabbing incident.
The audio recording
An audio recording was extracted from the appellant’s mobile telephone. The recording lasted for three minutes and 50 seconds. The first two minutes and 54 seconds contains audio of footsteps and rustling. As mentioned earlier, the recording was tendered at trial and a transcript was provided to the jury as an aide memoir. The recording captured the following exchange (noting that the new words were on the audio but not transcribed):
[Deceased]: “What’s this got to do with you Brian?”
“Hey”.
[Appellant]:           “Get away from me mate”.
Car door closes
[Deceased]:“Hey”.
[Appellant]:           “Just get away”.
[Deceased]:“What’s this got to do with you?”
[Appellant]:           “What’s it fucking got to do with you what I’m here for?”
[Deceased]:“What you doing sneaking up there, you’re up the bloody back, you’ve been told where the boundaries are hey”.
[Appellant]:           “So fucking what”.
[Deceased]:“hey”.
[Appellant]:           “I was on the”.
[Deceased]:“Hey havent you been”
[Appellant]:           “Don’t fucking touch met man”.
[Deceased]:“You’ve been told where the boundaries are, so why do, why do you fuckin’ persist. What were you doing under the excavator that time?”.
[Appellant]:           “Oh yeah sure mate”.
[Deceased]:“What were you doing under there, you were, you were under the excavator up there?”.
[Appellant]:           “fuckin”.
[Deceased]:“Hey”.
…[NEW WORDS]: ‘let go of me’ or ‘get off of me’.
[Appellant]:           “Fuck off”.
[Deceased]:“Hey”.
[Appellant]:           “just fuck off’.
[Deceased]:“Hey”.
[Appellant]:           “fuck off”.
[Deceased]:“fuck off”.
Sounds of apparent altercation can be heard – scuffling noises.
[Deceased]:“oi fucking cunt’.
[Appellant]:           “Fucking cunts”
Forensic evidence
Police officer, Peter McKenzie, attended the crime scene. He specialises in blood stain pattern analysis. He gave evidence of blood stains located in the southeast area of the block, which he considered were consistent with having been deposited by a person experiencing an arterial wound and walking from east to west or vice versa. He also gave evidence that there were three blood spots found near the deceased’s large blood stains. The DNA extracted from the three blood spots matched the DNA profile of the appellant. The appellant’s counsel submits that the presence and location of the appellant’s blood spots indicate that the deceased injured the appellant before, or proximate to the time at which the appellant inflicted the fatal stab wounds.

Ms Alexander, a registered nurse working at the Andamooka Medical Clinic on 8 November 2019, gave evidence of her interactions with the appellant shortly after the stabbing incident. She said he arrived at the Clinic at around 1:00pm, not long after she received a phone call from the police regarding a potential stabbing victim.
Ms Alexander observed blood covering the appellant’s face and chest. She documented his injuries as being lacerations to the right side of the cheek, the left corner of the eye, the right thumb and a haematoma on the right hand. She took five photographs of the injuries.[2] The appellant told her that he had stabbed someone and had been bashed by two men.
[2] Trial Exhibit P23.
Dr Simon Lockwood also examined the appellant and described his injuries in similar terms to Ms Alexander, also noting that the appellant’s speech and grip strength were functioning normally.
A forensic pathologist, Dr Charlwood, conducted a post‑mortem on the deceased on 11 November 2019. She determined the cause of death to be two penetrating stab wounds, one to the right leg and the other to the left arm causing arterial damage. The left arm stab wound was horizontally oriented and 1.4cm in length and 6.5cm in depth. It severed the brachial artery which is a major limb artery. The right thigh stab wound was closer to the vertical plane than horizontal and was 1.5cm in length and 5.5cm in depth. It injured the right femoral artery which is a major limb artery supplying blood to the lower half of the body.
Dr Charlwood considered that the difference in size between the wounds could have been due to movement by the appellant or the deceased. When asked as to the force used to inflict the wounds, Dr Charlwood said that at least mild force had been used to inflict the wounds. However, she said that as the blade did not penetrate cartilage or bone she could not determine if a greater level of force was used.
Under cross-examination, Dr Charlwood agreed that potentially a ‘prod’ or ‘poke’ could have produced the wounds.
The appellant’s record of interview – Exhibit P22
The appellant was interviewed by police in the early hours of the morning on 9 November 2019.
During the interview, it was suggested to the appellant that the deceased was murdered. The appellant responded, ‘there was no friggin intention, so get the big arsehole off of me. …Murder is when you try to kill someone. Not when some idiot jumps on top of you and tramples you to fucking pieces’.
The appellant explained that the deceased threatened and assaulted Ms Jensen and stole her camera and ‘it was just a repeat of what’s happened for 30 years’. He said Ms Jensen told him to go there, and then ‘they all came onto her property’. He said, ‘I think they had two vehicles there, so I was getting worried about getting out of there’.
As to the stabbing incident, he said, ‘I [had] gone away and then I could hear them all and they [had] all gathered here somewhere’. He said, ‘I could hear them and I [was] thinking oh it’s not real flash to get bailed up with them all around…[because] I was there by myself. And yeah I switched the recorder on when I was there’. He said the deceased came to his vehicle and ‘wouldn’t let me in the car and that’s when he dropped me…he knows martial arts and [was] trying to get my mobile phone off of me’. The appellant said he just wanted to get in the car and get out of there. He said, ‘I was looking for something to bloody belt him with or something to get him away and I was saying to him don’t you touch me, don’t you, like I was just telling him do not. All I wanted to do was get in the car and piss off’. The appellant said that he did not know how he ended up underneath him, but his phone was on the ground and the deceased was trying to stomp on it. He said Leif Tanzer or Walkington were yelling to ‘grab the fucking phone’. The appellant said he grabbed the phone and took off.
The appellant agreed that he had known the deceased for 25 years, and he said, ‘[the deceased] told me he was going to put a bullet in me. He’s told me three times.’ The appellant agreed he owned a knife. He then said, ‘I don’t really want to talk about it, all I want to say is I was protecting myself’.
As mentioned earlier, the appellant did not give evidence or call any evidence at trial.
The appeal grounds
The grounds of appeal (as amended) are particularised as follows:
1. The verdict of the jury was unreasonable and cannot be supported having regard to the evidence.
a.On the whole of the evidence, it was not open for the jury to be satisfied beyond a reasonable doubt that the appellant intended to cause grievous bodily harm to [the deceased].
b.On the whole of the evidence, it was not open for the jury to be satisfied beyond a reasonable doubt that the appellant was not acting in self-defence.
c.The jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt.
2. In the audio recording of the incident which led to the acts causing death in exhibit P19, there were additional words spoken which did not appear in the aide memoir transcript of that recording MFI P20 (the ‘New Words”). It is open to conclude that the words:
a.Were uttered by the appellant; and
b.are “let go of me” or “get off of me”.
The jury:
1.was not made aware of the existence or possible contents of the New Words;
2.did not hear cross-examination of any eye-witnesses concerning the existence and content of the New Words; and
3.was not given the benefit [of] counsel addresses or the learned trial Judge’s summing up concerning the existence, content and importance of the New Words; and
given that the New Words and their possible content were material to the defence of self-defence, then as a result, there was a miscarriage of justice.
Ground 2 – Audio recording and the new words
It is convenient to commence with a consideration of appeal Ground 2, as a determination of this appeal ground, and the effect of the new words, will inform a consideration of whether the verdict is unreasonable and cannot be supported by the evidence.
By way of background, after the appeal process had commenced, the appellant’s solicitor listened to the audio recording and formed the view that there were words spoken by the appellant which were not averted to, at all, during the trial, (the new words).
Defence counsel at trial provided an affidavit in which he said he was unaware of the new words.[3] No suggestion was made on this appeal that defence counsel was aware of the new words and made a tactical decision not to bring them to the jury’s attention. It was also common ground on appeal that the prosecutor was not aware of the new words.
[3] Affidavit of Christoher James Kummerow of counsel affirmed on 14 June 2024.
However, notwithstanding those matters, the new words did appear in the prosecution case statement filed with the court before the trial. This appears to have been overlooked by both counsel at trial and indeed, by the trial Judge.
Before this Court, the respondent concedes that the new words are spoken on the audio recording, and they are not transcribed in the aide memoir. Prior to the appeal hearing, a document entitled ‘the Parties’ Contentions concerning P19 and MFI P20’ was filed with the Court. The respondent’s position as summarised in that document is as follows:
-     It was open to a jury to conclude that there were additional words spoken by the appellant in the audio recording.
-     The additional words did not appear in the transcription provided to the jury as an aide memoir.
-     If a juror or jurors did conclude that there were words spoken on the audio that are not contained in the transcript, it was open to conclude that those words were ‘let go of me’ or ‘get off of me’ (or something else as determined by the jurors) (‘the new words’).
In light of those matters, the appellant submits that this Court can proceed to consider this ground of appeal on the basis that:
· there were words spoken on the audio recording that are not contained in the transcript;
· it is open to conclude that the new words:
-were uttered by the appellant; and
-are ‘let go of me’ or ‘get off of me’.
An amended transcript was provided to this Court showing an agreed position between the parties as to when the new words were spoken, as set out in paragraph [30] of these reasons.
We have listened to the audio recording and consider that the respondent’s concessions were properly made; and further, that a jury could find that it was the appellant who uttered the new words at the point in time shown on the amended transcript. That is so because the new words are spoken at the same time as the deceased is speaking, and only the appellant and the deceased are heard talking on the audio recording. Further, the voice which utters the new words has the same tone as the appellant’s voice when he speaks at other times during the recording.
We also consider that it would be open to a jury to conclude that the appellant used one of the two phrases referred to earlier. Given the import of both phrases is sufficiently similar, we do not consider it is necessary to reach a concluded view as to the precise words used.
Under this ground of appeal, it is the appellant’s contention that the fact neither counsel nor the trial Judge adverted to the new words, in any way, during the trial resulted in a miscarriage of justice because the new words were capable of having a material effect on the jury’s verdict.
The appellant submits that, without the new words, there remained ambiguity as to whether the audio recording supported the defence case that the deceased had made physical contact with the appellant prior to the appellant stabbing him, as opposed to the appellant simply apprehending that the deceased would physically harm him and warning the deceased not to touch him. This in turn was relevant to the issue of self-defence and the question of whether the prosecution had disproved the appellant genuinely believed stabbing the deceased was necessary and reasonable for a defensive purpose; and whether the conduct was, in the circumstances as the appellant genuinely believed them to be, reasonably proportionate to the threat that the appellant genuinely believed to exist.[4] That is, the new words had the capacity to impact both limbs of self-defence.
[4] Criminal Law Consolidation Act 1935 (SA) s 15.
It is the respondent’s contention that the omission of the new words has not resulted in a miscarriage of justice. The respondent emphasises that the new words are on the audio recording which is the actual evidence properly before the jury, and the omission of the new words is confined to the transcript (tendered as an aide memoir). That being so, the respondent submits that the jury were not deprived of the ability to discharge its duty to consider all the evidence against the appellant, and there is no miscarriage of justice.
It is to be accepted that where a recording of an event or interview is tendered at trial, the actual evidence is what is heard when the recording is played.[5] The transcript of the content of the recording (in the absence of any further factor such as expert translation of the content of the recording) is not of itself evidence.[6] It is also true that it is the practice of courts to provide a direction to a jury that the evidence is the audio or audio visual recording, and not the transcript of the recording, and should there be any discrepancy between the recording and the transcript, the recording must be preferred.[7]
[5]     Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 189 (Mason CJ, Brennan and Deane JJ); Gately v The Queen (2007) 232 CLR 208 at 237 (Hayne J); Brown v The King [2025] SASCA 40 at [211] (Livesey P).
[6]     R v O’Neill [2001] VSCA 227 at [9]-[12], [82], [84]-[85].
[7]     See, for example, R v Giovannone (2002) 140 A Crim R 1 at [60]-[62]; R v NZ (2005) 63 NSWLR 628 at [177]-[178]; Re Clark [2015] NSWSC 1206 at [16]-[19], [26]; R v Nehme (No 3) [2024] NSWSC 515 at [61].
In the context of written aides on legal issues provided to a jury during a summing up (such as in relation to the legal elements of an offence or the terms of a defence), it has been observed that in determining whether a deficiency or omission in the document has resulted in a miscarriage of justice, the status of the document and the ‘real issues’ are relevant. The issues must be determined in the context of the trial and summing up, considered as a whole.[8]
[8] See, eg, R v Curzon (2000) 1 VR 416 at [2] and [30] in the context of an erroneous aide memoire on the topic of the partial defence of provocation. See also Mulkatana and Mulkatana v The Queen [2010] NTCCA 4 at [9]-[20].
In the present case, as set out earlier, the audio recording was tendered with the transcript of the recording and was only provided to the jury as an aide memoire. At trial, neither counsel took any issue with the terms of the aide memoir before it was provided to the jury. That is hardly surprising as neither counsel was aware of the new words. Irrespective, the omission in this case was not confined to the absence of the new words from the transcript or aide memoir. Rather, the relevant omission extends to the fact that the new words were not averted to by counsel or the trial Judge at all during the trial. For example, the eyewitnesses were not examined about the new words; trial counsel did not address the jury on the new words; and the trial Judge did not refer to the new words in the context of her directions on the issue of self-defence.
For this ground of appeal to be made out, it must be established that the omission of the new words from the aide memoir, and the fact that neither trial counsel nor the trial Judge averted to the new words, was material in the sense that the omission could realistically have affected the reasoning of the jury to its verdict.[9]
[9] Brawn v The King [2025] HCA 20 at [3] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).
At the outset, the omission could have affected the reasoning of the jury in that, as a result, they did not avert to the existence of the new words or to their significance. The defence case at trial was that the prosecution had not disproved that the appellant was acting in self-defence when he inflicted the two stab wounds. The appellant explained during his police interview that the deceased ‘dropped’ him, and he was protecting himself. In that context, the evidence that the deceased had physically taken hold of, or had physical contact with the appellant at a time close to when the appellant inflicted the stab wounds had the capacity to strengthen the defence case that the appellant believed it was necessary and reasonable to inflict the wounds for a defensive purpose. The new words uttered by the appellant, whether they be ‘let go of me’ or ‘get off of me’, at the time they were uttered, and in the context of the whole of the audio recording, were capable of constituting evidence that the deceased had hold of the appellant. This in turn had the potential to influence the jury’s consideration of both limbs of the issue of self-defence, namely the appellant’s state of mind and whether his conduct was reasonably proportionate to the threat.
Moreover, the new words also had the potential to affect the jury’s assessment of the evidence of the two eyewitnesses (Leif Tanzer and Walkington) that they did not hear or see the deceased physically take hold of the appellant. Although, as explained later in these reasons, we do not consider the new words necessarily had the potential to significantly undermine either witness’s credibility or reliability given the deceased had his back to each witness, and bearing in mind the short space of time over which the stabbing incident took place. Furthermore, Walkington did, in fact, refer to a ‘scuffle’ between the appellant and the deceased.
In relation to the trial Judge’s summing up, and the omission of the new words from her directions on self-defence, it is well established that it is the trial Judge’s responsibility to explain the law to the jury in a manner which relates the relevant legal principles to the facts of the case and the issues to be decided.[10] The question of whether the prosecution had disproved self-defence was the central issue in dispute during the trial and the focus of the evidence and the parties’ addresses.
[10] Director of Public Prosecutions (Cth) v Kola [2024] HCA 14; (2024) 98 ALJR 632 at [37]; Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, cited in R v Chai [2002] HCA 12; (2002) 187 ALR 436 at [18].
It is true that the trial Judge gave orthodox directions on the issue of self‑defence about which there is otherwise no complaint. It is also to be accepted that her Honour gave the ‘standard’ direction to the jury as to the correct approach to the audio recording and the aide memoir in the following terms:
…The evidence for you to consider is what you hear in the recording. If you hear something differently as compared to what’s written down then disregard what’s written in the transcript and rely instead on what you hear in the recording.
Notwithstanding that the new words were in fact on the audio recording and properly before the jury, and the trial Judge directed the jury that should there be any discrepancy between the recording and the transcript, to prefer the audio recording, the jury were provided with no assistance as to the way in which the new words might impact on the central issue of self-defence. The appellant’s state of mind and whether the prosecution had proved he was not acting in self-defence when he inflicted the stab wounds was the focus of the forensic contest at trial. The new words had the capacity to affect the jury’s reasoning in respect of both limbs of the test for self-defence. Accordingly, the failure by either counsel to advert to the new words and the omission of the new words from her Honour’s directions on self-defence was significant in the context of the issues at trial and had the capacity to affect the verdict.
For those reasons, we are satisfied the irregularity could realistically have affected the reasoning of the jury to its verdict and was productive of a miscarriage of justice. We uphold this ground of appeal.
Ground 1
Under this appeal ground, the appellant contends that the verdict of the jury was unreasonable and cannot be supported by the evidence. By amended grounds of appeal, he contends that on the whole of the evidence, it was not open for 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 the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt.
The question for the Court when considering whether the verdict is unreasonable or cannot be supported having regard to the evidence is as stated by the High Court in M v The Queen:[11]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(citations omitted)
[11] (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).

The reference to whether the verdict is ‘unsafe and unsatisfactory’ in M v The Queen is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as “unreasonable” or such as “cannot be supported, having regard to the evidence”’.[12]
[12] MFA v The Queen (2002) 213 CLR 606 at [58] (McHugh, Gummow and Kirby JJ).
During the trial, there were several distinct challenges to the credibility and reliability of various witnesses; in particular, as to the evidence of Leif Tanzer and Walkington as eyewitnesses to the stabbing incident. Accordingly, when undertaking the task of determining whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, the appellate court must have regard to the jury’s advantage of directly observing and hearing these witnesses.
As the High Court explained in Pell v R:[13]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
(citations omitted)
[13] (2020) 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In this case, the assumption that the jury accepted the evidence of the eyewitnesses needs to be tempered by the fact that they were not questioned or confronted by the new words nor did the jury have the benefit of counsels’ addresses on the topic or the trial Judge’s directions.
Ultimately, the task for this Court is to determine, upon an independent assessment of the evidence, both as to its sufficiency and quality, whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, and whether the jury must, as distinct from might, have entertained a doubt as to the appellant’s guilt.[14]
[14] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J).
The parties’ contentions
The appellant contends that it was not open to the jury to be satisfied beyond reasonable doubt that: first, the appellant intended to cause grievous bodily harm to the deceased when he inflicted the stab wounds; and secondly, that the appellant was not acting in self-defence.
In relation to the first contention, and whether it was open to the jury to find proved beyond reasonable doubt that the appellant intended to cause grievous bodily harm to the deceased, the appellant relies on the following evidentiary matters.
First, the evidence of the acrimonious relationship between the appellant and the deceased; and that the deceased was angry with the appellant when he attended Ms Jensen’s block.
Secondly, the mechanism by which the fatal wounds were inflicted, namely by a small pocket-knife used with minimal force potentially by a prod or poke to inflict two stab wounds to non-vital areas of the body.
In relation to the second contention, and the question of whether it was open to the jury to find that the appellant was not acting defensively when he stabbed the deceased twice, the appellant relies on the following matters.
First, the evidence of the acrimonious relationship between the appellant and the deceased and the growing tensions between them.
Secondly, it was the deceased who approached the appellant and instigated the altercation. The appellant relies on the audio recording (including the new words) which he says supports his account that he was protecting himself. Moreover, the appellant submits that the fact he made the audio recording of the incident can be seen as a protective measure. If he was the aggressor, why would he record the incident?
Thirdly, the crime scene analysis and the presence of the appellant’s blood (by way of three blood stains) in the vicinity of the large pooling of the deceased’s blood. The appellant submits this indicates that he was injured before the deceased went to the ground.
Fourthly, after the stabbing incident, Leif Tanzer and Walkington pursued the appellant and attacked him at a time when they did not know the appellant had stabbed the deceased, which suggests a ‘continuum of violence’ by the deceased, his son and Walkington towards the appellant.
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.
Walkington also maintained throughout his evidence that he saw ‘a bit of a scuffle and [the deceased] was on the ground.’ He conceded in cross-examination that he could not recall whether the deceased pushed the appellant to the ground. Nor could he recall if the deceased was trying to stomp on him.
Both Leif Tanzer and Walkington gave evidence to the effect that the physical altercation between the appellant and the deceased centred around getting hold of, or retrieving, the mobile phone which was recording the incident between the two men. Their evidence was contrary to the defence case that the deceased, angry and upset at the appellant’s presence near his block, approached him aggressively, pushed him to the ground and physically assaulted him; and it was in the context of protecting himself that the appellant stabbed the deceased.
The jury had the opportunity to see and assess each eyewitness over a considerable period, albeit without having the new words in the audio recording put to either witness or the subject of comment by counsel or directions by the trial Judge. After reviewing their evidence, we do not consider the credibility or reliability of either witness was undermined to such an extent that it was not open to the jury to be satisfied of the crucial features of their evidence.
Turning now to consider the audio recording, we accept the appellant’s submission that the new words lend some support to the defence case. During the recording, the appellant is initially telling the deceased to ‘Get away from me mate’. This persists: ‘Just get away’. A short time later, he states: ‘Don’t fucking touch me man’. The new words of ‘let go of me’ or ‘get off of me’, if uttered by the appellant, demonstrate that the deceased had physical contact with the appellant before the appellant was on the ground or shortly after the appellant was on the ground.
The appellant also submits that the new words demonstrate that the deceased had physical hold of the appellant at a time proximate to when the appellant inflicted the stab wounds. Accepting that is so, this does not necessarily undermine the evidence of the eyewitnesses nor defeat the prosecution case. It must be borne in mind that the incident occurred very quickly, the deceased had his back to both witnesses and the unchallenged evidence that the deceased was not armed.
As to the submission that it is unlikely the appellant would have made a recording of the incident if he was the aggressor, and as such it should be seen as a ‘protective measure’, we do not consider this is necessarily so. On a previous occasion, the appellant made an audio recording when a compliance officer from the Mines Department attended Ms Jensen’s property on 24 October 2019. The audio recording on that occasion captured exchanges between the deceased and Ms Jensen.
In relation to the appellant’s submission that Leif Tanzer’s actions in attacking the appellant after the stabbing incident revealed a ‘continuum of violence’ perpetrated by the deceased, we do not agree. It may well be that at the time Leif Tanzer attacked the appellant, he did not know the appellant had stabbed the deceased. However, it must have been readily apparent to both Leif Tanzer and Walkington that the altercation between the appellant and the deceased had become heated and further, Leif Tanzer said he observed the appellant ‘swipe’ twice at the deceased.
Moreover, the appellant’s comments to Leif Tanzer that ‘you fucken cunts deserved this’ does not speak of defensive conduct.
Thirdly, we have also had regard to the appellant’s exculpatory statements in his record of interview wherein he stated that the deceased dropped him to the ground in an attempt to obtain his mobile telephone and was, in effect, the aggressor throughout the altercation. In a disjointed interview, the appellant made the following comments which supported the defence case that he was acting in self‑defence:
-      There was no friggin intention, so get the big arsehole off of me.
-      They all came onto her property.
-      I think they had two vehicles there […]So I was getting worried about getting out of there.
-      I could hear them and I’m thinking oh it’s not real flash to get bailed up with them all around…cause I was there by myself. And yeah I switched the recorder on when I was there…
-      and come down here to the car and [the deceased] come up and wouldn’t let me in the car and that’s where he dropped me…he knows martial arts.
-      …and trying to get my mobile phone off me.
-      Just wanted to get in me car and get…out of there.
-      I was looking for something to bloody belt him with or something to get him away and I was saying to him don’t you touch me, don’t you, like I was just telling him do not. All I wanted to do was get in the car and piss off.
-      I don’t really know but I ended up underneath him and my phone was on the ground and he was trying to stomp on it.
-      Walkington or Leif Tanzer are yelling at the other ‘grab the fucking phone’.
-      Grabbed the phone and took off
-      [The deceased] told me he was going to put a bullet in me.
-      He’s told me three times.
Towards the end of the interview the appellant was asked about the pocket‑knife used to stab the deceased. He said:
Q: All right might as well get straight to the point. Do you own a knife?
A: Yep
Q: Yep. Can you describe the knife to me.
A: Ah you got it.
…
I don’t really want to talk about it
Q: You don’t really want to talk about it. All right.
A: All I want to say is I was protecting myself.
Q: Yep yep. Alright so you don’t want to talk about the knife except to say we’ve got it.
A: Well I don’t know.
Q: That’s why I need you, if you don’t mind to describe it to me.
A: Yeah not really
Q: Not really
A: I said I didn’t want to talk about it
Q: Okay so you don’t want to talk about what happened there. All right.
A: I want to go there with you and show you what happened.
During the trial, the prosecution accepted that the appellant’s statements in his police interview raised the issue of self-defence, and the prosecution bore the onus of proving that the appellant was not acting in self-defence when he inflicted the two stab wounds to the deceased. While the appellant does not explicitly say that, at the time of inflicting the two stab wounds, he genuinely believed it was necessary and reasonable to do so for a defensive purpose, he does provide an account from which the jury could infer that this was his state of mind. Further, when asked about the knife he said that he was ‘protecting [himself]’.
Notwithstanding those exculpatory statements and having regard to the whole of the evidence (including the new words), we are satisfied that it was open to the jury to find that the appellant did not act in self-defence when he stabbed the deceased twice. While accepting the evidence as to the deceased’s physical build, character and his animosity towards the appellant, the fact remains that when the deceased approached the appellant, the appellant still had the opportunity to leave in his vehicle. Furthermore, there was unchallenged evidence that the deceased was not, at any stage, holding any object or weapon.
Notwithstanding the challenges to the evidence of the two eyewitnesses, they maintained that the appellant went to the ground to retrieve his phone, and they did not see the deceased physically assault or take hold of the appellant – rather, the deceased’s focus was on retrieving the phone. Even accepting that the new words indicate the deceased may have had physical hold of the appellant and bearing in mind that the deceased was not armed, it was open to the jury to find, in the circumstances of this case, that the appellant did not believe it was necessary and reasonable to stab the deceased twice for a defensive purpose; and the conduct was not, in the circumstances as the appellant believed them to be, reasonably proportionate to the threat.
On our independent review of the whole of the evidence, we are also satisfied that it was open to the jury to find that the appellant intended to inflict grievous bodily harm to the deceased when he stabbed him. As mentioned earlier, there was no dispute at trial that the appellant inflicted two penetrating stab wounds that caused major arterial damage and significant blood loss resulting in cardiovascular collapse. As summarised earlier, the left arm wound had a surface length of 1.4cm and a depth of 6.5cm; and the right thigh wound had a surface length of 1.5cm and a depth of 5.5cm. These were not minor wounds.
While Dr Charlwood opined that the force required to inflict the two wounds was as ‘at least mild force’ consistent with a ‘prod or a poke’, the wounds did not penetrate any cartilage or bone, and it was therefore not possible to say whether a greater level of force was used to inflict the stab wounds. Furthermore, the appellant stabbed the deceased twice in a manner described by Leif Tanzer as involving a ‘swipe’. That mechanism is consistent with a level of force greater than a ‘prod or poke’.
The weapon used by the appellant to stab the deceased was a pocket-knife which had a significant blade length of 8cm.
In relation to the three blood spots from which the appellant’s DNA was extracted, apart from describing the blood spots as ‘three near circular stains’, the crime scene examiner could not say anything about how or when they were deposited. Accordingly, while the blood spots could have been deposited before the deceased was stabbed (as postulated by the appellant), they could equally have been deposited by the appellant after being assaulted and injured at the rear of the property by Leif Tanzer. The evidence was equivocal.
In summary, the fact that the appellant used a pocket-knife with an 8cm blade to inflict more than one wound to the deceased in the context of a long-standing acrimonious relationship, and his subsequent comment to Leif Tanzer that ‘you fucken cunts deserved this’ was sufficient to prove an intention to commit grievous bodily harm. For those reasons, and upon our own independent assessment of the whole of the evidence, we are satisfied that it was open to the jury to find the appellant intended to cause grievous bodily harm when he stabbed the deceased.
Accordingly, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence of murder. This was not a case where the jury must, as distinct from might, have entertained a doubt as to the appellant’s guilt.
We dismiss this ground of appeal.
Orders
We make the following orders:
1.    Grant permission to appeal but dismiss Ground 1.
2.    Grant permission to appeal and allow the appeal on Ground 2.
3.    Set aside the conviction and remit the matter for retrial.