Meakin v R

[2018] NSWCCA 288

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Meakin v R [2018] NSWCCA 288
Hearing dates:	15 August 2018
Decision date:	14 December 2018
Before:	Macfarlan JA at [1]; Hoeben CJ at CL at [140]; Fagan J at [151]
Decision:	(1)   Leave to appeal is granted. (2)   Ground 1 of the appeal is rejected. (3)   The appeal is allowed on ground 2 only. (4)   Quash the appellant’s conviction of murder. (5)   Order that there be a retrial of the appellant on the indictment.
Catchwords:	CRIME – appeal against conviction – appellant convicted by jury of murder – appellant was driving, with his blood-alcohol level in excess of prescribed concentration, when his van struck and killed the deceased – appellant had an altercation with the deceased prior to the collision – appellant alleged that the collision was an accident – whether the jury verdict was unreasonable and unable to be supported by evidence – discussion of the role of an appellate court in addressing “unreasonable verdict” grounds of appeal – whether the trial judge erred in leaving to the jury evidence of the appellant’s flight from the scene, or alternatively leaving such evidence to the jury as evidence of consciousness of guilt
Legislation Cited:	Crimes Act 1900 (NSW), s 52A(2) Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Cases Cited:	Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 Belhaven and Stenton Peerage (1875) 1 App Case 278 Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 Kalbasi v Western Australia [2018] HCA 7 Lane v The Queen [2018] HCA 28 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 Power & Power v R (1996) 87 A Crim R 407 R v Cook [2004] NSWCCA 52 R v Power (1996) 87 A Crim R 407 R v White [1998] 2 SCR 72 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Romolo v R [2018] NSWCCA 3 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category:	Principal judgment
Parties:	Michael Meakin (Appellant) Regina (Respondent)
Representation:	Counsel: J Renwick SC / M Kalyk (Appellant) H Roberts (Respondent)   Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/55959
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law – Criminal Citation: [2016] NSWSC 1602 Date of Decision: 18 November 2016 Before: Davies J File Number(s): 2014/55959

Judgment

1. MACFARLAN JA: On 4 August 2016 the appellant, Mr Michael Meakin, was found guilty by a jury of the murder of Mr Nicholas McEvoy (“the deceased”) on 21 February 2014. On 18 November 2016 the trial judge sentenced him to a term of imprisonment of 24 years, with a non-parole period of 18 years.

2. The deceased died after being struck by a Toyota HiAce van, driven by the appellant, on Richmond Road, Plumpton in Sydney, in fine weather. The Crown case was that the deceased was walking on the grass verge next to the road, shortly after midnight, when the appellant drove deliberately on to the verge and struck him from behind, with an intention at least to cause grievous bodily harm. The defence case was that the appellant was driving along the left of two eastbound lanes on the road (lane one) when the deceased unexpectedly stepped in front of his vehicle, resulting in him being unable to avoid hitting the deceased.

3. It was common ground at the trial that the appellant and the deceased were both intoxicated and that shortly before the collision they had had an altercation at the nearby Plumpton Hotel. The appellant did not stop after the collision. Instead, he drove to his home by back roads and, when he arrived home, ensured that his vehicle was parked out of sight. Drivers of other vehicles noticed the deceased’s body on the grass verge soon after midnight and summoned assistance.

4. There being no eye witnesses to the collision, the Crown case was a circumstantial one relying, in summary, upon the following:

1. Evidence of the altercation, and consequent animosity that the appellant displayed towards the deceased at the Plumpton Hotel;

2. The appellant’s decision, on leaving the Plumpton Hotel, to drive east along Richmond Road, rather than towards his home to the west, after the appellant allegedly observed that the deceased left on foot headed east from the hotel car park;

3. The nature of the damage to the vehicle and the location of the injuries to the deceased, which indicated that he had been hit from behind;

4. The location on the grass verge of debris from the collision and the nature of the damage to that debris, demonstrating, in the opinion of the Crown’s crash investigation expert, that the impact had occurred on the verge;

5. Evidence from a palynologist about pollen found on parts of the appellant’s vehicle, allegedly indicating that at least the left side of the appellant’s van had travelled over the grass verge; and

6. The appellant’s flight from the scene and attempt to avoid detection.

5. In his case, the appellant gave evidence that his vehicle had hit the deceased accidentally, that he was unaware that the person he hit was the person with whom he had recently had an altercation and that he had fled the scene of the collision because he knew that he was over the prescribed blood alcohol limit. He called crash investigation and palynology experts to give evidence which he contended negated any inference that the collision occurred on the grass verge, this being a proposition which he submitted was essential to the prosecution’s proof of his intention to kill or injure the deceased.

6. On appeal the appellant relies on the following two grounds:

1. The verdict was unreasonable and unable to be supported by the evidence; and

2. “The Trial Judge erred in leaving to the jury evidence of the Appellant’s flight from the scene, or alternatively leaving such evidence to the jury as evidence of consciousness of his guilt”.

As Ground 1 does not invoke “a question of law”, the appellant requires leave to appeal in respect of it, under s 5(1) of the Criminal Appeal Act 1912 (NSW).

7. For the reasons stated below, I consider that leave to appeal should be granted, Ground 1 upheld and the appellant’s conviction of murder set aside. A verdict of acquittal of murder should be entered. In those circumstances, Ground 2 does not arise but I nevertheless conclude below that it is well-founded as the appellant’s conduct after the collision was not capable of indicating a consciousness of guilt of murder, as distinct from guilt of some lesser charge such as manslaughter or the alternative offence charged in the indictment against him. That alternative charge was that the appellant was driving his vehicle when it caused the death of the deceased and at the time of impact he was under the influence of intoxicating liquor in circumstances of aggravation, namely, that his blood-alcohol level was in excess of the prescribed concentration (s 52A(2) Crimes Act 1900 (NSW)). Neither party submitted to this Court that if the murder conviction were quashed, this Court should do other in relation to Count 2 than remit the proceedings against the appellant for trial on that count.

THE EVIDENCE AT THE TRIAL

The events at the Plumpton Hotel

8. The deceased’s brother, Mr Barry McEvoy, gave evidence that the deceased came to his home in the late afternoon of 20 February 2014 and that they consumed a considerable quantity of beer before the deceased left at about 10.30pm carrying five or six cans of beer in a black plastic bag.

9. Soon after, Mr Brendan Wetere, a security guard working at the Plumpton Hotel, noticed the deceased enter the hotel. Mr Wetere saw the deceased watch a game of pool between the appellant and another hotel patron, known as “Chicken”. The deceased was not acquainted with either. Throughout the game, the deceased encouraged Chicken, jumping up, screaming and then hugging Chicken when he won the game. Mr Wetere also observed the appellant to be annoyed by the deceased’s behaviour. Chicken heard the appellant tell the deceased to “piss off”.

10. As Mr Wetere considered that the deceased was intoxicated, he asked him to leave and walked him out to the hotel car park. The appellant then came out and exchanged unfriendly words with the deceased. The appellant swung a punch at the deceased but he did not connect. Mr Wetere escorted the deceased part of the way through the car park and told him to go home. The deceased then walked diagonally across the car park and in the direction of Blacktown, which was to the east. As he did, he jumped around, shadow boxing.

11. CCTV footage supports Mr Wetere’s evidence and it also shows the appellant purchasing some 21 glasses of beer during the course of the afternoon and evening. The footage of the deceased walking across the car park indicates that he was not then carrying anything but, as the plastic bag and beer cans to which Mr McEvoy referred were subsequently found at the scene of the collision, it is probable that the deceased hid them somewhere near the car park on his arrival at the hotel and retrieved them on his departure. The footage shows the appellant’s van leaving the car park a few minutes after the deceased had left.

Evidence of the passing motorists

12. Mr George Jarman was driving east along Richmond Road at about, or shortly after, midnight on the night of the collision. He saw a man walking along the footpath (in fact the grass verge) “trying to put a jumper on and trying to hitchhike at the same time”. He said the man was walking “along the footpath right on the edge” and that he was “staggering”. He saw the man’s arm come out and thought that he was hitchhiking. He said that the man was about a metre from the gutter and commented to his wife that he looked drunk. Later in his evidence, Mr Jarman repeated that the man was “staggering” as he was walking.

13. Ms Melinda Boucher, who was in the car with Mr Jarman, her husband, also said that she saw a man “staggering” and trying to put a jumper on. Again, she said that she thought the man was trying to hitchhike because his arm came out as they drove past. She said “it looked like the man was trying to pull something over his head with the other hand as he was stumbling along”. Ms Boucher was asked whether the “jumper” could have been a plastic bag, as no jumper was found at the scene of the collision, but she said that she did not know if it was.

14. Shortly after midnight Ms Rhonda Layoun was driving east along Richmond Road when she saw a man, the deceased, lying on the grass verge. She telephoned for an ambulance and returned to the location where she had seen the man. Ambulance records show that her call was made between 27 and 28 minutes past midnight. Ms Layoun also saw a shoe lying in one lane of the road and a car side mirror in the other. Other persons who stopped to assist gave evidence concerning debris found at the scene but none saw a mirror on the road. Likewise, none of the ambulance paramedics or police officers who subsequently attended the scene saw a mirror on the road. On the contrary, some of them saw it on the grass verge and a number of witnesses also saw a shoe on the road.

15. Senior Constable Kristy Foster of the Police Crash Investigation Unit attended the scene at about 1.30am. She made a record of items of evidentiary significance and placed markers adjacent to them. A scale plan of the site showing these items was tendered as Exhibit D. Exhibit D shows the grass verge, approximately five metres wide, running along the northern side of Richmond Road. The verge is separated from the road by a concrete gutter. On the north side of the verge, there is an embankment that falls away to the north.

16. There were items of evidentiary significance on or near to the grass verge, back to the west for about 40 metres. On the verge, about 40 metres back were a lamppost and signpost (the “western post”), also about a metre from the kerb. About half way between the two signposts were two beer cans, one full and one partly full, within a metre of the kerb. Two more full beer cans were found on the top and bottom of the embankment beside the roadway. Just to the east of the first two cans was the left side mirror which had been knocked off the appellant’s van. About midway between those beer cans and the deceased’s head was a “furrow”, to which the parties’ expert crash investigators gave considerable attention. Small pieces of the casing from the side mirror were also found on the roadway, in the gutter, about 12 metres to the east of the beer cans. A shoe of the deceased was found on the roadway near the gutter, about five or six metres to the east of the deceased’s head.

17. Mr Darin Hill, a person who stopped to assist Ms Layoun and the deceased, stated that the deceased’s body was found lying in contact with a signpost (the “eastern post”). The body’s feet were “closer to the road” and within a metre of it. One of the attending ambulance paramedics, Mr Rhys Jones, gave evidence that the deceased’s feet were towards the west and agreed that they were fairly “parallel with the road”. Constable Wilson, one of the police officers who attended the scene, described the deceased as having mud, not dirt, marks on him. He also said that the deceased’s legs were closer to the roadway than his head and that he was at a slight angle, neither perpendicular to nor parallel with the road.

The damage to the van

18. Senior Constable Leanne Gearside of the Crime Scene Unit examined the appellant’s van on the evening of 21 February 2014. She said that the major impact site with the vehicle was in a vertical line up the front bumper bar on the passenger side, through the headlight and onto the windscreen. After that examination she went to the Richmond Road site. She noticed that the grass verge was damp, but did not have any recollection of it raining that day.

The injuries to the deceased

19. Dr Issabella Brouwer, a forensic pathologist, conducted a post-mortem examination of the deceased’s body. She found that his injuries were consistent with a collision with a motor vehicle and that, due to the extent of his injuries, death would have likely occurred instantaneously on, or soon after, impact. She said that the impact was to the back of the deceased’s body, with greater focus on the left hand side.

20. Whilst Dr Brouwer concluded that the deceased was hit substantially from behind, she could not say whether he was turned slightly one way or another.

The intoxication of the appellant and the deceased

21. Dr Judith Perl, a forensic pharmacologist, was called by the Crown to give expert evidence concerning the intoxication of the appellant and the deceased.

22. Based on assumptions concerning the quantity of alcohol consumed by the appellant (deriving from the CCTV footage from the Plumpton Hotel) (see [11] above), Dr Perl calculated that at shortly after midnight on 21 February 2014 the appellant’s blood alcohol concentration would have been between .257 and .313 per 100 millilitres, with a median reading of .285. She said that most people with that blood alcohol concentration would appear to be drunk, although people with a high alcohol tolerance might not have that appearance when engaging in everyday activities such as walking and talking. Nevertheless, as driving skills are uniquely demanding of a person’s brain function, even people with a high tolerance to alcohol would be “grossly affected” when driving.

23. Moreover, Dr Perl gave evidence that when a person has a blood alcohol level of above .2, their visual speed will be greatly reduced, and that if something occurs in that person’s peripheral field of vision then it is likely that their brain will not be able to cope with that information and will therefore ignore it. She also noted that when a person has a blood alcohol level of above .15 their reaction skills, including the ability to recognise, process and act, as well as track whilst driving, will also be “very significantly” reduced.

24. Dr Perl was referred to a certificate of analysis of the deceased’s pathology indicating that his blood alcohol level was .167 at the time of his death (Exhibit 12). She agreed that in these circumstances his fine and gross motor skills would have been impaired “very significantly”, but indicated that, at that level, highly alcohol-tolerant people might not show visible signs of intoxication, such as unsteadiness and swaying. She recognised that other factors, including lighting and uneven surfaces, could impact on an intoxicated person’s steadiness.

25. Upon viewing the CCTV footage of the deceased at the Plumpton Hotel, Dr Perl found little evidence of “obvious” intoxication. She concluded that the deceased was a “regular, very experienced drinker” and that it was “highly unlikely” that he would trip or fall. She added that “[he] may have [had] a little bit of unsteadiness, depending on the surface that he [was] walking on, but nothing that would cause him any great difficulty”. She acknowledged, however, first, that the deceased showed some signs of swaying and unsteadiness and, secondly, that the deceased’s increasing loudness and signs of disinhibition during the course of his time at the Plumpton Hotel were “very consistent” with intoxication.

Mr George’s expert accident investigation evidence

26. The Crown relied on Mr George’s evidence to establish the location of the collision between the deceased and the appellant’s van as well as to exclude the reasonable possibility that the collision occurred in the manner that the appellant claimed, namely on the roadway.

27. At the conclusion of his evidence-in chief, Mr George summarised his opinion as follows:

“Q.   What is your opinion about where the collision took place in that north-south plane, in other words, whether it was on the sealed road surface or on the verge?

A.   Yes. Well, … I believe it happened over the grassed area, but I don’t believe it was very far onto the grass. I believe it was close to the kerb because, if it was further over, you’d expect that there would be some - some tyre marks heading back to the roadway. So, it would - if it was on the grass, it would be very close to the kerb.

Q.   Is it your opinion that it was on the grass, the point of collision with the deceased?

A.   Yes. But it’s on the balance of probability for me because, you know, I would like - I would have liked to have seen tyre marks and I would liked to have seen an impact scuff mark from the shoes, you know, whether it be on the bitumen or on the grass. But when you look at the accumulative information from the other - all those aspects of, you know, physical evidence that has all the dirt and the grass and mud on them, you know, it really does identify that this accident most likely occurred over the grassed area.”

28. Mr George’s opinion was that the collision would have occurred on the grass verge, or at “a relatively short distance to the west” of where two beer cans were found midway between the eastern and western signposts on the grass verge near the kerb.

29. Mr George gave the following evidence concerning those two beer cans:

“Q.   If one accepts that the beer cans had been carried in the plastic bag at the time of the collision, and that is in the deceased’s left hand, did the position of the beer cans have any relevance to your findings in relation to the movements of the deceased?

A.   They form a part. So vehicle/pedestrian crash research demonstrate fairly consistently that loose items, you know, that might be held or on a pedestrian such as shopping bags, glasses, hats, they can be knocked off and land very close to where the impact occurs. So based on that theory, if the beer cans were being carried by the deceased, then they would be a good indicator as to the proximity of the crash.”

30. Accordingly, Mr George produced a diagram (Exhibit EE), entitled “Illustrating Post-Crash Horizontal Trajectory of the Deceased and Plastic Bag”, on which a line had been drawn from the beer cans to the deceased’s body, apparently suggesting that the appellant’s van had hit the deceased when he was approximately where the beer cans were found (on the grass verge, about one metre from the kerb) and that the impact had propelled the deceased’s body the approximately 20 metres to where it was found (again, on the grass verge).

31. In addition, Mr George used the locations of the beer cans near the kerb and the resting place of the deceased’s body, and the distance between each, to determine the likely speed that the appellant’s van was travelling. He stated that the “throw” distance (that is, the distance the deceased’s body travelled after the collision) of 18.6 metres was consistent with a speed range of between 45 to 61 kilometres per hour. Mr George accepted however that if the appellant was travelling at 65 to 70 kilometres per hour (the speed at which the appellant gave evidence that he was travelling) the point of impact would have been “slightly further to the west”.

32. Mr George however went on to give the following evidence concerning Exhibit EE and the location of the two beer cans near the kerb:

“Q.   Do I take it you don’t suggest that that [the line shown in Exhibit EE] was his exact path?

A.   No. So the assumption is that the beer cans were where it actually happened, they just dropped on to the ground, so it could be a little bit further back, it could be a little bit perhaps toward the road but, generally speaking, you know, that’s your first piece of physical evidence of post-crash debris distribution.

…

Q.   Now, can I then deal with the beer cans. (Witness shown exhibit EE.) Now, the cans there are demonstrated at C?

A.   Yes, sir.

Q.   On that map?

A.   Yes.

Q.   Just to be clear, you’re not saying, from what I gather your evidence, you’re not saying that that was the site of impact?

A.   No, sir.

Q.   That is, basically, you’re drawing it simply from the cans?

A.   Yes.

Q.   And drawing a line from the cans?

A.   Yes.

Q.   And from what I understand from your evidence-in-chief is that the point of impact might be to the west of those cans?

A.   Yes, sir.

Q.   When you say that the research shows that loose items on a person tend to fall close or can fall close to the impact site, we’re not talking about close meaning centimetres?

A.   Oh, yes, sir, we are.

Q.   It could be as much, can’t it, as a metre?

A.   Could be.

Q.   It can be as much, can’t it, as two metres?

A.   Certainly.

Q.   So, somewhere between centimetres and how far?

A.   It might not even fall there at all, so - on some cases but, generally speaking, that is a consistent finding.

Q.   So it may not even fall there at all, but it’s fair to say, isn’t it, even on the research that you are talking about, 2 metres would be within that, sort of, close to the accident site?

A.   Yes.”

33. Mr George also conceded that the position of the beer cans near the kerb could not alone support his conclusion that the collision occurred on the grass verge rather than on the roadway:

“Q. On the basis of the cans, you could not say, could you, that the impact had to be on the grass?

A. Certainly not.

Q. In fact, it could have comfortably been[,] on the basis of cans[,] on the road?

A. Just look at the cans. It could be anywhere.”

34. Moreover, Mr George said that the two beer cans found on or down the embankment had no bearing on his findings and that if they did have any relevance then “the only bearing [the cans] would have is if they weren't in fact being carried by the victim.”

35. Mr George provided no further explanation as to why he relied only on the two beer cans located on the grass verge near the kerb, other than to describe the way in which they may have ended up where they did:

“Well, the two that were scattered, you know, they could have been impacted differently. They could have been directly impacted by something and then through that they were close together, probably fallen together, so, yeah, it wouldn't surprise me.”

36. In cross-examination, Mr George was first asked about the “furrow”, which was an area of disturbed soil on the grass verge that Constable Gearside marked as “H” on Exhibit D.

37. Mr George disagreed with Senior Constable Foster’s view that the furrow was caused by the van reversing, as did the defence expert, Mr Trevor Booth. Rather, Mr George considered that the appearance of the furrow was consistent with the deceased’s body passing through it after impacting with the van. Mr George expressed his view as follows:

“There was a splay of dirt, the furrow wasn’t completely rectangular, it was sort of wider at the western end and narrower at the [eastern] end. There was a splay of dirt that was sort of distributed down toward where the pedestrian came to rest and there was a linear relationship between rest position, furrow and, you know, beer cans and other markers that the police had put near the kerb. Then there was all the dirt that was noted in the victim, in the hair, in the back - where was it? He had significant deposits of dirt and abrasions to his head, back, arms, legs and right foot. So there was an abundance of information that sort of supported the theory that it was most likely associated with the post-crash pedestrian motion.”

38. Mr George opined that the furrow was most likely created by “[the deceased’s] buttocks maybe … something substantial. But equally it could have been an awkward strike with the legs or the feet … or both”. He referred in this context to mud stains found on the deceased’s back, right flank and right upper buttocks area. Curiously however Mr George’s trajectory line on Exhibit EE did not pass through the furrow and he gave evidence later in cross-examination that the trajectory diagram “showed that the furrow was consistent with being impacted by at least some extremity of the victim”.

39. Mr George also gave evidence about a “flicker of mud and grass” that was found on the windscreen of the appellant’s van. He was of the opinion that it was caused by the deceased’s feet digging into the grass when he was hit, accelerating with a forward projection into the air in front of the van and then flicking the mud and grass onto the bonnet of the van. He accepted in cross-examination however that the flicker would have been light in weight and affected by the wind far more than the van or the deceased’s body, and thus could only have travelled as fast or faster than the van if it was attached to the deceased’s body.

40. Mr George attributed some significance to his perception, based on photographs taken at the collision scene, that the toes of the deceased’s shoes had “mud loadings” on them, suggesting that the collision between the van and the deceased was more likely to have occurred on the grass than the roadway. Moreover, he found that there were no signs of coarse abrasions, or lines, on the shoes consistent with the deceased having been on the roadway when the collision occurred.

41. Mr George gave the following evidence about small pieces of the van’s left side mirror that were found on the grass and in the gutter of the roadway:

“Q.   Can I ask you some questions about the position of the pieces of black mirror material that were found on the road surface or near to the kerb, those various things, mirror body material, I should say?

A.   Yes.

Q.   Can you say anything about how they got to those places that they were found in?

A.   They would have been - the mirror has been shattered, the casing has been shattered so there's going to be a disbursement of plastic material. So they could go - they'll go in an easterly direction, given that that's the velocity of the vehicle, but then they could fan out in either direction. I wouldn't expect that they'd go a long way to the right because the van would arrest any sort of motion in that regard. Yes, so I think they were the smaller pieces.

Q.   Yes?

A.   Yes, and they have to fall and bounce and roll to rest.”

42. He accepted in cross-examination that, viewed in isolation, the location of the pieces of mirror was just as consistent with the impact being on the roadway as on the grass verge. Moreover, he accepted that the location of the pieces of mirror on the roadway next to the kerb was indicative of the van being back on the roadway by the time it reached marker “I” on Exhibit D.

43. Mr George noted that the mounting post of the body of the side mirror had “impacted with the muddy grass surface because it’s dug in and there’s that material adhered to it”. Moreover, in both evidence-in-chief and cross-examination, he gave evidence that the absence of “coarse abrasions” on the side mirror indicated that the mirror had not been in contact with the roadway.

44. Mr George also gave the following evidence about the location of the side mirror in cross-examination:

“Q.   Again where the mirror is or where you've got the mirror - and I will come back to that in a moment - where you got the mirror again doesn't indicate that the collision occurred on the grass?

A.   By itself, no sir.

Q.   Because it could have flown on in a direction, landed there, and even if the accident was on the roadway?

A.   Um, it, yeah, that's right. It could have been deflected to the right and forward and landed in the grass.

Q.   Or to the left and forward?

A.   Sorry, to the left and forward. That's what I meant to say.

Q.   So again the beer cans don't necessarily point to, and the mirror doesn't necessarily point to, it being on the road?

A.   No.

Q.   Sorry, being on the grass?

A.   Nothing in isolation points to it.”

45. He accepted in cross-examination that “part of the problem with … accident reconstruction” is that “[t]here is a whole raft of variables when you’ve got bodies in motion” and that it “can be very difficult to pinpoint what happened”.

46. In addition to the evidence quoted at [27] above, Mr George made the following references in his evidence to the absence of the van’s tyre marks of the van on the grass verge:

“Q.   The question I should ask is were the vehicle to have travelled on the grassed area, would it necessarily leave tyre marks?

A.   No, not necessarily. If there was significant [braking or] steering, then I would expect to see some sort of tyre marks, but if it was just rolling generally straight, you might not get any tyre marks at all.

…

Q.   If you can assume from me that the evidence is pretty clear that the accused had a blood alcohol level of in excess of point 2 and that, of course, that would affect significantly his gross motor skills. I mean, you've done enough traffic investigation to know that; that would be fair to say?

A.   Sure, yes.

Q.   Its prospects of getting up and down in 1.2 seconds without leaving a mark on the footpath is pretty slim?

A.   I really don't understand the questioning, sir, because it's not about what he could do, it's about what's there and what's not there and what may have happened. So, you know, I don't see how you're making this assumption that, you know, the vehicle was travelling straight and then swerves to the right. I don't get that. All I get is that there were no tyre marks there. If he had swerved, I'd expect there to be tyre marks. If it was a slight steering, I would like to see tyre tracks, but they may not be there.

Q.   Can you understand what I'm talking about is this: the quicker the movement up and down the more likely there is going to be a turn, right?

A.   Yes.

Q.   And you understand that when I'm asking you about these things what I'm putting to you is the fact that there are no tyre marks, bearing in mind that, is inconsistent with him going up on to the verge; you understand that, don't you?

A.   Right. I would say it would be inconsistent with him going up on to the verge late and then having the impact and then steering back on to the road, certainly; but it would not be inconsistent with him going up on to the verge earlier, say back a ways, you know, even--

Q.   Even the other side of the sign?

A.   Well, on the lay back, on the lay back at that driveway [to the west of the western signpost].

Q.   The other side of the sign?

A.   Yes.

Q.   In any event, it still then has to get back down, doesn't it?

A.   Yes.

Q.   And even if it was at that lay back, that's in fact only some 24 metres from the cans, how long does it take to go 24 metres at, say, 70 kilometres an hour?

A.   24 metres? At 70 you're doing 19 and a half odd per second, so a little over a second.”

Dr Milne’s expert palynology evidence

47. Dr Lynette Milne is an expert in palynology, that is, “the study of pollen, spores and other acid resistant microscopic botanical type particles”. The Crown relied upon her evidence to establish that the appellant’s van had driven on to the grass verge when the collision occurred.

48. Dr Milne examined and compared soil samples and swabs taken from the collision site at Richmond Road, the appellant’s property at Freemans Reach, the deceased’s shirt as well as the tyre, mudflaps and underside of the appellant’s van.

49. Dr Milne identified five insect-pollinated pollen types that occurred at Richmond Road and not at Freemans Reach. According to Dr Milne, the significance of insect pollination, and therefore these identified pollen types, is that because pollination is not windborne it does not move far from the parent plant (although it can remain in the soil even after the plant is no longer present).

50. She gave the following evidence concerning swabs taken from underneath the van:

“Q.   Would you expect to find [the five insect-pollinated pollen types] in the swabs taken underneath the vehicle if the vehicle had simply driven past, for example, the Richmond Road area on the roadway?

A.   No, definitely not. The only pollen that you're going to find on the road, if any, is windblown pollen, and then it is constantly refloated. Because the pollen from insect pollinated plants is a bit heavier, it is not designed, it is not aerodynamic, it is not designed to fly through the air, you will only find them in the soil that is close to where the parent plant has been. For it to have to actually get on the road it has to be blown on, and then it is constantly recycled anyway.

…

Q.   And the question of whether that vehicle had been in contact with the soil in that area?

A.   Yes. My considered opinion was that there was enough evidence from the pollen that the vehicle, in particular the passenger side and likely the rear driver's side, had recently driven over a grassed area or damp soil area containing pollen assemblage comparable with that at the Richmond Road site before the mud flap and tyre tread swab samples were taken.

Q.   When you say ‘before’, is it possible that it was weeks or months before or not?

A.   If the scene of crime or forensic officers did their work as they were taught, no, they would be only collecting the most recent.

Q.   Is it possible that the assemblages you found on the swabs could have come from the Freemans Reach site?

A.   I don't believe that - the majority of the material on the swabs appears to have come from Richmond Road, and I suspect there would be a little bit that also came from Freemans Reach. But I cannot identify any, apart from tricolporate LC, that does not occur on Richmond Road, it does occur in the swabs, and there's a couple of others but they are very minor.”

51. In cross-examination, Dr Milne gave the following evidence:

“Q.   … The most you can say is that that Santalum [one of the insect-pollinated pollen types she identified] that was found on the car came from a place like Richmond Road?

A.   I can say that Richmond Road has that, and I can say that the swabs have it, and that it is very, very rare to be found in any pollen assemblage. I've done hundreds of pollen assemblages from around Sydney, Queensland and Western Australia, and even though Santalaceae, which the Santalum belongs to, is very common, particularly in Western Australia, I have never seen it in a pollen assemblage.

Q.   And when you say it is very common, it is actually a fairly common plant?

A.   It's a common plant, but its pollen is very, very rare. This is the first time I've ever seen it in a pollen assemblage.”

52. Dr Milne placed particular emphasis on the presence of Santalum pollen in the samples taken from the van and Richmond Road. She accepted in cross-examination however that that pollen could be found anywhere from 50 to 100 metres from the parent plant and that insect-pollinated pollen can travel not only by the movement of insects but also up to 50 metres as a result of “soil creep and water”. She said that for the van’s rear driver’s tyre to “pick up” Santalum, it would have had to have driven on the grass “[o]r it needs to drive over a clod of grass that might have been churned up by another tyre or - I don’t know. I can’t say definitely drove across there. All I can tell you is that the pollen is there. How it got there, I don’t know”. She did not accept that the percentages of pollen found on the rear left side tyre was consistent with the van driving “off a little bit on to the side of the road”.

53. Dr Milne further accepted in cross-examination that the pollen assemblages found on the van “came from a place like Richmond Road” (emphasis added) and that she could not rule out the possibility that they came from a different site along the appellant’s 25 kilometre trip back to Freemans Reach.

The appellant’s evidence

54. The appellant gave evidence that he was feeling drunk by the end of the evening of 20 February 2014. He remembered someone who he did not know (in fact, the deceased) interrupting his pool game and being “just loud and rude”. He remembered the bouncer taking the deceased outside as well as going outside and throwing a punch. He said that it was a small altercation that did not mean much to him at the time.

55. He gave evidence that he then decided to leave and get something to eat at Woodcroft McDonalds “[b]ecause it was close”. (It was about two kilometres to the east along Richmond Road.) He said that he wanted to have something to eat before he drove 20 odd kilometres to his home (which was to the west).

56. He said that he came out of the car park in his van and turned right onto Richmond Road, heading east, and “[a]bout, I don’t know, 3 or 400 metres away someone stepped out and I collided with the person. Then I panicked and went to the next intersection and drove home”. He said that he did not have any idea as to who the person was, whether they were male or female, or whether they were alive. He said that he knew that he was “over the limit” and that he did not have any idea who he had collided with. He denied that he deliberately drove at the deceased.

Mr Booth’s expert crash investigation evidence

57. The defence called Mr Booth to give expert crash investigation evidence. He identified four possible points of impact, each of which was on the roadway. He expressed the view that Mr George’s analysis was unreliable and flawed.

58. Mr Booth particularly relied on:

1. Ms Layoun’s evidence that the broken side mirror was sitting on the roadway when she pulled up;

2. The appearance of coarse abrasions, or parallel lines, on the deceased’s shoe consistent with his having been on the roadway when he was hit and that the “mud loadings” on the shoes, as identified by Mr George, were actually exposed rubber caused by the sole of the shoe having worn away;

3. The absence of tyre marks on the grass verge; and

4. His perception of the direction of the “furrow”. He considered that, in light of the mud and dirt on the deceased’s shorts and shirt, the deceased’s body landed on the furrow and created “the track that’s coming out of it”, that is, the disturbance of the grass “on the departure side of the furrow towards the east”.

59. Mr Booth opined that there was no scientific, or mathematical support, for Mr George’s evidence in relation to, first, the trajectory diagram, secondly, his associated reliance on the positioning of only two out of the four beer cans, or the positioning of the beer cans generally, thirdly, the flicker of mud and grass on the windscreen of the van and, finally, the location at which the side mirror was found on the roadway.

60. Mr Booth said that he would “most definitely” have expected there to have been tyre marks if the van had driven onto the grass verge “because the ground is soft” and likely to be damp. He said that there was “no likelihood” of the impact occurring on the verge without tyre marks being left there. He stated that that opinion was not dependent on the softness of the ground or the speed of the vehicle, nor did it assume that the tyres would have skidded.

61. In cross-examination, Mr Booth was shown a police photograph of a Toyota LandCruiser parked on the grass verge near the scene of the collision during the police investigation. He agreed that he could not see any tyre marks leading to or from the vehicle. When it was suggested to him that the appellant’s van may therefore not have left tyre marks he said “did he [that is, the LandCruiser] drive forward or backwards? How did he get there? Which direction did he come? If you - where is he there?”

Dr Mildenhall’s expert palynology evidence

62. Called to give evidence by the defence, Dr Dallas Mildenhall stated that, whilst insect-pollinated pollens are usually distributed “almost immediately”, or within a few metres, around the parent plant, “insects can travel quite a distance so the pollen that they carry can be carried quite a distance away from the parent plant … ” He said that he expected therefore that insects could have dispersed the pollen types that Dr Milne had identified on the roadway.

63. Whilst Dr Mildenhall agreed that the pollen Santalum was very rare, he pointed out that the percentage of that pollen in the samples taken from underneath the appellant’s van was 2.2% ,whereas in the sample taken from the Richmond Road grass verge there was only 0.2%. He said that this suggested to him that the Santalum pollen did not come from the Richmond Road site but from somewhere else.

64. Ultimately, Dr Mildenhall disputed Dr Milne’s method of comparison of the pollen assemblages. He also said that he could not test the findings in her report as she had given the pollen types unique names that made it difficult to assess what pollens had in fact been identified.

THE CROWN’S CIRCUMSTANTIAL CASE AT TRIAL

65. At the trial, the Crown characterised the contest between it and the appellant as being as to whether the collision occurred on the sealed surface, or off the edge of, the roadway. The Crown stated:

“Two questions to be asked. One, was it on the road or was it on the grass? If it was on the grass, even right at the edge of the road, even right on the gutter, that is on the top part of the gutter, if it occurred there then you might think it was deliberate, that the collision was the intended consequence of the actions of the accused. If you find that it was on the grass anywhere, it is, in my submission to you, easier to resolve the question of why it happened and the question of what was the accused's intention, because of its position off the road.”

66. On appeal the Crown confirmed that it conducted the trial on the basis that, for the appellant to be found guilty of murder, it was necessary for the jury to find that the collision occurred off the roadway (Transcript p 25). In these circumstances, occurrence of the collision off the roadway was in my view an “indispensable link […] in a chain of reasoning towards an inference of guilt” and therefore had to be proved beyond reasonable doubt (Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56).

67. At the trial, the Crown submitted that the following matters gave rise to the “irresistible inference” that the collision occurred off the roadway and that the appellant therefore intended his van to hit the deceased and kill or seriously harm him.

68. First, at the Plumpton Hotel, the appellant displayed “considerable animosity” towards the deceased, as evidenced by the words exchanged between the appellant and the deceased as well as the appellant’s attempt (albeit unsuccessful) to punch the deceased.

69. Secondly, at the Hotel, the appellant became “increasingly agitated and angry” at the deceased. The CCTV footage showed that the appellant appeared to watch the deceased as he crossed the car park, heading towards the east. It also showed that, shortly before he left, the appellant locked and unlocked his van more than once, indicating he was still agitated. Moreover, rather than heading west towards his home, the appellant drove his van to the east along Richmond Road.

70. Thirdly, the location and condition of both the deceased’s body and the debris from the collision indicated that it occurred away from the roadway, for the following reasons:

1. The deceased was lying with his feet closer to the roadway than his head, such that his head was a couple of metres away from the roadway. His body did not show any road-related injuries;

2. All four beer cans that the deceased had had in his plastic bag as well as a piece of the van’s headlight were found off the roadway. The resting position of the two beer cans near the kerb was significant because Mr George gave evidence that loose things held by, or located on, pedestrians when they are struck tend to fall close to where the impact took place;

3. Pieces of the casing of the van’s left mirror were found in the roadway gutter and the body of the side mirror was found on the grass verge. The soil on the mirror body indicated that it had struck the ground off the roadway. There was no evidence of it, or the mirror pieces, having had contact with the roadway;

4. There were glass fragments from the windscreen of the vehicle in the furrow on the grass verge;

5. One of the deceased’s shoes was found lying in the gutter, not out further on the roadway; and

6. All of the debris was off the roadway, or in the gutter only. If the van was positioned in the middle of lane one and the collision occurred there, it could be expected that there would have been some evidence on the road surface either by way of debris or marks. The lane was 3.3 metres wide, whilst the van was considerably less than that. There were no skid marks on the roadway nor any marks made by the deceased’s shoes on the roadway.

71. Fourthly, as to the line of travel of the deceased’s body after the collision, “if you work back from his position where he was lying, back through the gouge [that is, the “furrow”], [that] places him somewhere near to or slightly west of where the cans [near the kerb] were found off the road”.

72. Fifthly, the deceased’s shoes had mud on them, consistent with the lump of mud and grass that was flicked up onto the van: “[i]t had to come from something, and it didn’t get flicked up on to the vehicle as the vehicle was driving along in lane 1, because there’s nowhere that it could come from. It’s got up there in the way that Mr George has described”.

73. Sixthly, Dr Perl said that, on her assessment of the level of the deceased’s intoxication, it was very unlikely that he would stumble. In those circumstances, there was no reason to think that the deceased may have staggered or fallen onto the roadway. No-one else saw him stagger or fall onto the road.

74. Seventhly, the injuries to the deceased were to his back, predominantly on his left side. Even if he had been facing more towards the east and to the south, that is, across the road, he would have likely suffered some injuries to his face, but there were none. Dr Brouwer said that, in light of the deceased’s injuries, he would have been facing away from the van when it hit him.

75. Eighthly, Dr Milne’s palynology evidence indicated that at least the left side of the appellant’s van travelled over the grass verge.

76. Ninthly, at about the time of the collision, there was sufficient visibility for others to see the deceased walking along the verge beside Richmond Road, yet the appellant claimed not to have seen or recognised him.

77. Tenthly, the appellant’s conduct after the collision, in fleeing the scene, travelling on back streets to avoid being seen and hiding his van, indicated a consciousness of his guilt of murder.

78. Finally, the Crown Prosecutor’s response in closing address to the defence’s case that it was significant that there were no tyre tracks on the grass verge was as follows:

“Now, the only thing that militates against that and, no doubt, a great deal will be made of this, is the fact that there were no tyre tracks on the grass - there were no skid marks on the grass of a vehicle skidding, but there were no tyre tracks found on the grass that might indicate that a vehicle's wheels have travelled over the grass.

Mr George answered that by saying that, unless the vehicle had been turned sharply or had skidded, you wouldn't expect to find marks there and if you look at the scene, and you attended the scene, what's to say that tyres would have made tracks anyway?

And if you look at the Toyota LandCruiser in that photograph that was tendered to suggest to you that the line of travel of Mr McEvoy was such that he was on the road at the time, if you look at where that LandCruiser is parked, there is no tyre marks leading to it or from it. That is a hard-compacted shoulder of the road that's been there for a considerable time in that state. It's not regularly ploughed up or churned up. It has grass growing on it. In my submission to you, it's a hard surface and there is no evidence that it was soft at the time, such that tracks of vehicle wheels rolling over the surface, in an arc, would necessarily leave marks there. To suggest otherwise is purely speculative and that's what Mr Booth was want to do on a considerable number of occasions.”

RELEVANT LEGAL PRINCIPLES RELEVANT TO GROUND 1

The unreasonable verdict ground of appeal

79. The principles applicable to an unreasonable verdict ground of appeal were recently re-stated by Bathurst CJ (with the concurrence of Johnson and Fullerton JJ) in Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86] as follows:

“The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the court is required to make its own ‘independent assessment of the evidence’. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice.

In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48].”

80. In Romolo v R [2018] NSWCCA 3 at [24], after quoting these paragraphs, I pointed out (with the concurrence of Button J):

“In light of these principles, the ultimate question raised by the applicant’s ground of appeal is not whether the jury could have had a reasonable doubt, but whether it should have had such a doubt. In other words, if, after its independent assessment of the sufficiency and quality of the evidence, this Court has a reasonable doubt as to the applicant’s guilt, his conviction should be quashed unless the jury’s verdict can be explained by its advantage in having seen and heard the witnesses giving their evidence … ”

81. I refer as follows in detail to the relevant High Court authority.

82. The High Court’s decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 has been applied by the High Court on many occasions. It stands as the authoritative source of the principles presently applicable to an unreasonable verdict ground of appeal. In that case, the plurality said at 493:

“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).

83. Their Honours then referred to the necessity to qualify Barwick CJ’s statement in Ratten v The Queen (1974) 131 CLR 510 at 516; [1974] HCA 35 that, in relation to an unreasonable verdict ground of appeal, “[i]t is the reasonable doubt in the mind of the court which is the operative factor”. The qualification was said to be required because the statement failed to place sufficient emphasis upon the jury’s advantage in seeing and hearing the witnesses. Their Honours continued:

“But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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” (citations omitted; emphasis added).

84. Their Honours described this passage as intended to provide authoritative guidance to courts of criminal appeal. In my view, it is apparent from it that an appellate court’s conclusion that a verdict of guilty was reasonably open to a jury can only be arrived at by the appellate court independently assessing the sufficiency and quality of the evidence before the jury, asking itself whether it is left with a reasonable doubt as to the accused’s guilt and, if it is, whether the jury’s absence of such doubt may be explained by an advantage the jury had over the appellate court in seeing and hearing the witnesses. It follows that for an appellate court to express its ultimate conclusion simply as one that a verdict was reasonably open to the jury does not demonstrate that the required analysis has been undertaken.

85. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] and [20]-[22], the majority confirmed the correctness of these principles. Justices Heydon and Crennan dissented in the result but not as to the principles to be applied.

86. At [11]-[14], the majority adopted the approach in M v The Queen, including the quotation of the observation that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”. In confirmation of the approach to which I have referred in [84] above, their Honours said that the Court of Criminal Appeal erred in treating:

“what should have been the central question – whether on the evidence the Court was satisfied that the applicant was guilty of the offences – as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction” (emphasis added)

87. The principles adopted in M v The Queen and SKA v The Queen were endorsed by the High Court in BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 at [31].

88. The need for an appellate court to form a view about the accused’s guilt is also apparent from Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In that case, the plurality at [12] emphasised the importance of the proposition that “as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the [judge] ought to have experienced” and the statement in M v The Queen that the court is bound to intervene where “even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted”. Likewise, Gageler J at [82] stated that a court of criminal appeal will be required to intervene “if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless the tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt”.

89. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court at [65] emphasised the need for the court of criminal appeal to have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial” and stated at [66] that the ultimate question is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”. As the Court cited M v The Queen at 494-5 as authority for the latter proposition, it should not be inferred from the abbreviated form of the proposition that their Honours were not accepting the explication of the proposition given in M v The Queen and referred to at [83] above.

90. Most recently in GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698, the plurality at [20] referred to SKA v The Queen at [20]-[22] as correctly stating the relevant principles. Their Honours concluded by stating at [31], consistently with what I have said in [84] above, that the dissenting judgment in the Court below “was right to conclude that the real possibility that the complainant’s evidence was a reconstruction and not an actual memory could not be excluded beyond reasonable doubt”. Edelman J agreed with this conclusion.

87. Certainly, when determining an unreasonable verdict ground of appeal, this Court “must not disregard or discount” that the “jury is the body entrusted with the primary responsibility of determining guilt or innocence” and “that the jury has the benefit of having seen and heard the witnesses” (M v The Queen at 493; see [82] above). It is nevertheless apparent that a court of criminal appeal’s conclusion that a verdict of guilt was reasonably open to a jury can only be arrived at after the court has taken the steps to which I have referred in [84] above. In the present case, there is the particular additional circumstance, to which I refer at [121] below, that the jury verdict was effectively vitiated by the error, identified in Ground 2, of the jury not being instructed that the appellant’s post-collision conduct was incapable of demonstrating his consciousness of his guilt of murder (see [136]-[137] below).

Circumstantial cases

92. The following principles are well established in relation to cases sought to be proved by circumstantial evidence.

93. In Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42, the plurality said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilty of the accused’ … To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’ …” (citations omitted).

See also The Queen v Baden-Clay at [46], [50].

94. Therefore, where the Crown’s case substantially rests on circumstantial evidence, a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence. For an hypothesis to be reasonable, it “must rest upon something more than mere conjecture” (Peacock v The King (1911) 13 CLR 619 at 661; [1911] HCA 66).

95. In The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46], the plurality said in relation to circumstantial cases:

“It is of critical importance to recognise … that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”.

96. That observation was cited with approval by the plurality in The Queen v Baden-Clay at [47]. Their Honours emphasised the words “all of the circumstances” in that passage and added that “[t]he evidence is not to be looked at in a piecemeal fashion, at trial or on appeal” (ibid).

97. Moreover, it is not for the defence “either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that tend to support such an inference”: The Queen v Baden-Clay at [62], quoting Barca at 105.

DETERMINATION OF THE APPEAL – WHETHER VERDICT UNREASONABLE (GROUND 1)

98. The need to consider, in its totality, the evidence relied upon in support of a circumstantial case does not preclude the consideration, as a first step, of the individual items of evidence the Crown relied upon. I proceed to take that step now, by reference to the manner in which the Crown put its case at the trial and using the numbering I have adopted in [68] to [78] above.

99. The first matter that the Crown relied upon was the animosity displayed by the appellant towards the deceased at the Plumpton Hotel. Different views were available as to the level of animosity involved but it was open to the jury to take the view that the appellant was very angry with the deceased and that this might have provided a motive for the appellant to murder him.

100. Secondly, although contrary inferences were also available, it was open to the jury to take the view that the appellant’s agitation and anger continued, and perhaps even increased, whilst he and the deceased were in the car park. Similarly, whilst the view was available that the CCTV footage did not clearly show the appellant watching the deceased as he crossed the car park and headed east, it was open to the jury to conclude otherwise.

101. Moreover, the fact that the appellant did not head west from the hotel towards his home, but east along Richmond Road, was a matter for the jury to take into account, but it was of limited significance in light of the possibility of there being legitimate reasons for him doing so, such as, as he said in evidence, his heading towards a nearby McDonalds restaurant to obtain food before driving about 20 kilometres to his home.

102. Thirdly, the Crown relied upon the location and condition of both the collision debris and the deceased’s body. It referred to the particular matters identified at [70] above. I comment as follows:

(1)   The fact that the deceased’s body was found on the grass verge and not lying on the roadway was of limited significance. As the Crown’s crash investigation expert, Mr George, acknowledged “[t]here is a whole raft of variables when you’ve got bodies in motion”. He said that items involved in the collision (and therefore presumably also the deceased’s body) would “go in an easterly direction, given that that’s the velocity of the vehicle” but that they “could fan out in either direction”. He acknowledged that the fact that the body of the left side mirror landed on the grass verge did not, of itself, indicate that the collision occurred on the verge and accepted that “nothing in isolation” pointed to that. In particular, he did not suggest in his evidence that the final resting position of the deceased’s body was inconsistent with the collision having occurred on the road.

(2) Similar comments are applicable to the fact that the four beer cans and a piece of the van’s headlight were found off the roadway, although Mr George gave greater, but not determinative, significance to the resting position of the two beer cans referred to at [29] above. His view as to these two cans was however only based on unidentified “vehicle/pedestrian crash research” that he said demonstrated “fairly consistently” that “loose items” “can be knocked off and land very close to where the impact occurs” (emphasis added) (ibid). Moreover, later in his evidence, Mr George indicated that when he said that research indicated that loose items tended to fall “close” to the impact site, he was referring to items falling within about two metres of the accident site. This concession rendered his evidence on this topic of little significance as the two beer cans were found within about a metre of the roadway.

In addition, Mr George did not give any satisfactory explanation, consistent with his view that loose items tend to fall close to an impact site, as to why the other two beer cans, which were apparently also in the plastic bag being carried by the deceased at the time of the collision, were found considerably further away.

(3)-(6) For the reasons already given, the finding of other debris on the grass or in the road gutter was not inconsistent with the collision having occurred on the roadway.

Similarly, that the road lane was wider than the van was not of any particular significance, bearing in mind that the appellant, who was driving the van, was, on any view, heavily intoxicated. Dr Perl’s evidence was that his driving skills would have been “grossly affected”. Some deviation of the van from the centre of lane one would not therefore have been surprising or indicative of the appellant intending to drive at the deceased.

103. Fourthly, the Crown’s submission that the deceased’s body would have passed through the “furrow” after the collision was not consistent with Mr George’s “horizontal trajectory” diagram (see [38] above). The line of travel, drawn from the two beer cans to the deceased’s body, did not pass through the “furrow”. If Mr George had in fact drawn a line on the diagram passing through the identified locations of the furrow and the resting position of the deceased’s body, it would have commenced (west of the furrow) on the roadway and suggested that the collision occurred there.

104. It is possible that if the deceased’s torso passed along the line on the diagram representing the “trajectory of the deceased”, one of his extremities may have gone through the “furrow”, but that possibility is difficult to reconcile with Mr George’s view that the furrow was most likely created by the deceased’s torso (see [38] above). I should add that in cross-examination Mr George appeared to resile from the suggestion conveyed by the title of his diagram (see [30] above) that it accurately depicted his view of the post-collision trajectory of the deceased’s body (see [32] above). That having occurred, there was an absence from Mr George of any clear evidence as to what he considered the trajectory of the deceased’s body would have been following its collision with the appellant’s van.

105. Fifthly, the Crown relied upon a “flicker” of mud and grass found on the windscreen of the van after the collision. The principal difficulties with this reliance were, first, that there was no evidence that the flicker was not on the van prior to the collision. Secondly, in respect of the mud found on the deceased’s shoes, as the deceased was undoubtedly walking along the grass verge prior to the collision, it is distinctly possible that the mud and grass were on one or both of the deceased’s shoes prior to the collision, instead of attaching to them at the moment of collision as they dug into the grass on which the Crown alleged the deceased was then standing.

106. Sixthly, the Crown submitted that the deceased was unlikely to have stumbled onto the roadway from the grass verge. The two witnesses who saw him walking along the grass verge prior to the collision, Mr Jarman and Ms Boucher, however, both observed him to be “staggering” (see [12]-[13] above). Ms Boucher also referred to the deceased “stumbling along”. They seem to have been mistaken in thinking that he was “trying to put a jumper on” as no jumper was found at the collision site. However, the deceased may have been doing something playful with the plastic bag, containing the beer cans, that he was carrying. His high spirited conduct inside the Plumpton Hotel (jumping up and screaming, and then hugging Chicken who was a stranger – see [9] above) and in the hotel car park (jumping around and shadow boxing before he retrieved the plastic bag containing the beer cans – see [10] above) suggest that this is a realistic possibility.

107. Seventhly, the Crown relied upon the deceased’s injuries being to his back. However, if the deceased staggered or stumbled onto the roadway, he could have ended up facing in any direction, including with his back to any on-coming traffic.

108. Eighthly, the Crown submitted that Dr Milne’s palynology evidence indicated, based on her insect-pollinated pollen findings, that at least the left side of the appellant’s van passed over the grass verge. The principal difficulty with that submission is that Dr Milne accepted that insect-pollinated pollens (including the Santalum pollen which was the principal focus of her evidence) could be found anywhere from 50 to 100 metres from their originating plants (see [52] above). As well, Dr Milne accepted that the van’s tyres might have picked up Santalum from a clod of grass which happened to be on the road (ibid).

109. Another difficulty with the submission is that Dr Milne opined that the relevant pollen was on the van’s two passenger-side tyres and the rear driver-side tyre, but not on the front driver-side tyre. It is difficult, if not impossible, to envisage the van being driven by the appellant onto the grass verge in such a way as to keep the van’s front driver-side tyre off the grass when the other three tyres were on it. Each of the crash investigation experts attested to this difficulty.

110. Ninthly, the Crown challenged the appellant’s evidence that he had not seen and recognised the deceased walking along the grass verge (see [56] above). That he might not have is not however inconceivable in light of the appellant’s state of inebriation.

111. Tenthly, the Crown relied upon the appellant’s post-collision conduct. This conduct clearly revealed the appellant’s consciousness that he had done something seriously wrong. However, in my view, the appellant’s conduct was equally consistent with a concern about having struck a pedestrian with a vehicle that he was driving whilst heavily intoxicated, as with a consciousness of guilt of murder. As between those two possibilities, the conduct was neutral. When considering Ground 2 below (see [127]-[138]), I conclude that it was therefore not properly put by the Crown to the jury, or left by the trial judge to the jury, as evidence of the appellant’s consciousness of his guilt of having committed murder. Even if that were not so, evidence of the conduct could not, for the same reasons, be regarded as having significant probative value.

112. Finally, I turn to the Crown Prosecutor’s response at the trial to the defence’s case, that its expert, Mr Booth, supported, that the absence of tyre tracks on the grass verge caused by the van was inconsistent with the Crown’s case that the appellant had driven the van on to the grass verge.

113. The Crown’s expert, Mr George, appeared to be troubled by their absence. He said in the conclusion to his evidence-in-chief that he “would have liked to have seen tyre marks” (see [27] above). He gave this as a reason for expressing his ultimate view that the collision occurred on the grass verge only “on the balance of probability”, as distinct from any higher level of confidence. He appears to have arrived at that view because of the “accumulative information from the other - all those aspects of you know, physical evidence that has all the dirt and the grass and the mud on them” (ibid). However, on examination, and for the reasons given above, that other evidence is in fact also consistent with the collision having occurred on the roadway.

114. Mr George described the circumstances in which tyre marks might not have been made as involving an absence of “significant [braking or] steering”, on the part of the van (see [46] above). Thus, tyre marks might not have been left if the van was “just rolling generally straight” and there was only “slight steering” (ibid). He suggested that this might have been the case if the van had been driven on to the grass verge “back a ways” where a driveway met Richmond Road (ibid). That driveway was however immediately followed to its east by a lamp and signpost (the western signpost). These appear from photographs in evidence to be only about a metre from the gutter, certainly insufficient for the van to pass, on the grass, between the signpost and the gutter. If the van came onto the grass verge after the western signpost, it would have travelled 20 metres or less before reaching the point where the two beer cans were found together near the kerb (the point where Mr George hypothesised that the collision probably occurred). The van then had only a maximum of another 20 metres to leave the grass verge before encountering the eastern signpost. According to Mr George, at a speed of 70 kilometres per hour the van would have travelled 20 metres in about a second. This speed was at the top of the range of his estimates of the van speed, with 45 kilometres per hour being at the bottom. It is difficult, if not impossible, to contemplate that the appellant in his inebriated state could have driven the van at a speed between 45 to 70 kilometres per hour on to and off the grass verge within about 40 metres, without any significant braking or steering, or indeed that he could have done it all.

115. Furthermore, the Crown Prosecutor put to the jury that the grass verge was “a hard-compacted shoulder … a hard surface” (see [78] above), but there was no evidence that this was so. On the contrary, there was evidence of the “furrow” which comprised a gouge in the soil and grass made by the deceased’s body. As well, there was much mud, soil and grass on both the deceased’s clothing and the debris from the collision, which suggests a degree of softness of the surface. Moreover, Senior Constable Gearside of the Crime Scene Unit described the grass verge as “damp” and stated that she did not have any recollection of there being rain between the time of the collision and when she attended the scene (see [18] above). Her evidence therefore suggested that the grass verge was damp at the time of the collision.

116. In his final address, the Crown Prosecutor relied on a photograph of a Toyota LandCruiser parked on the grass verge, which he had suggested to Mr Booth, in cross-examination, showed an absence of tyre tracks (see [61] above). As Mr Booth made clear in his response, the photograph did not give rise to any inference that the appellant’s van would not have left tyre marks if it had been driven onto the grass because it was not known whether the LandCruiser had come onto the grass over an area of it that was visible in the photograph (ibid).

Conclusion as to whether verdict unreasonable

117. As is necessary, I have considered the evidence in its totality, assessing the united force of the matters that the Crown relied on. Having done so and conducted an independent review of the evidence at the trial, both as to its sufficiency and its quality, I am left with a reasonable doubt as to the appellant’s guilt of murder.

118. The jury’s absence of such doubt is not in my view explicable by any advantage it had over this Court. Questions of credibility of course arose at the trial in relation to the appellant’s evidence but I have put the appellant’s evidence aside for the purpose of the present analysis and considered the strength or otherwise of the prosecution’s case. Thus I have not assumed that the jury accepted any of the appellant’s evidence. Moreover, there are no significant respects in which the Crown contended that its case was advantaged by the appellant’s evidence (cf The Queen v Hillier at [49]-[52]).

119. Certainly, the jury had to consider conflicting evidence given by the prosecution and defence experts, but their evidence was of a complicated nature and this Court has had the considerable advantage of having the opportunity to conduct a protracted examination of the relevant transcript and exhibits. At least, it cannot be said that the jury had any advantage over this Court in its ability to address that evidence.

120. In the particular circumstances of this case, any advantage the jury had over this Court in having seen and heard the witnesses give their evidence was limited, in particular because there was no other significant conflict of evidence to be resolved. The jury had a view of the places at which the relevant events occurred but the Crown did not suggest at the trial or on appeal that the view enabled the jury to determine any matter that was not apparent from the oral and documentary evidence. In particular, (subject to the Crown’s passing observation to the jury that “you attended the scene” quoted in [78] above) the Crown did not suggest that the jury’s view of the collision scene, more than two years after it occurred, might have enabled it to determine whether the appellant’s van would or would not have been likely to leave tyre marks on the grass verge if it had travelled on it. Instead, the Crown relied in this respect on the photograph of a Toyota LandCruiser referred to in [116] above.

121. In considering the regard to be had to the jury verdict in the present case, it is of particular significance that the jury verdict was effectively vitiated by the erroneous course taken at the trial in relation to the appellant’s post-collision conduct. As I indicate below in addressing Ground 2, the jury should have been instructed that the appellant’s post-collision conduct was incapable of demonstrating his consciousness of his guilt of murder. The conclusion of the other two members of the Court on this appeal is that the appellant’s conviction should be quashed and a new trial ordered on Ground 2. In these circumstances, the jury’s verdict that the appellant is guilty of murder cannot, for the purposes of considering Ground 1, be regarded as of any, or at least any significant, value. The Crown relied upon the post-collision conduct as part of the circumstances indicating the appellant’s guilt of murder (see [111] above) and it cannot be assumed that the evidence of it was not influential in the jury’s deliberations.

231. Dr Perl said her observations of the appellant on the CCTV footage and the fact that he was able to drive more than 20 km home were matters indicative of a very high level of tolerance. However she said that driving makes particularly high-level demands because it involves requirements for decision-making which are unique to each occasion. She said this cannot be practised and therefore high tolerance to alcohol does not exempt a person from gross adverse effect upon driving skills at above 0.2.

232. The witness further explained that peripheral vision is impaired at the blood-alcohol content which she had calculated for the appellant. Also the speed at which he would process information, make a decision to brake or to carry out any other manoeuvre and then actually to execute it would all be slowed. She said his ability to drive the more than 20 km home was consistent with the level of driving impairment to which she referred but was also “highly indicative of a very high level of tolerance”. She said someone highly tolerant of alcohol and familiar with the road would be capable of this at the blood-alcohol content which she attributed to the appellant, provided he did not encounter other traffic that he had to make decisions about.

233. The jury could give this evidence such weight as they thought it deserved in determining whether the Crown had proved beyond reasonable doubt that the appellant deliberately drove his vehicle partly over the kerb to collide with Mr McEvoy before steering back fully onto the roadway and continuing. The evidence did not constitute a definitive rebuttal of or obstacle to the Crown’s circumstantial case. It was open to the jury to infer that the degree of the appellant’s intoxication fuelled his disproportionate animosity to Mr McEvoy and at the same time disinhibited him sufficiently to judge that he could undertake this manoeuvre, which was potentially hazardous to his vehicle and himself. The effect of intoxication on his capacity to execute the manoeuvre was, on any view of this evidence, a question of degree. It was a matter within the jury’s province to judge.

(6) Palynology evidence

237. It is not necessary to extend these reasons by reviewing the palynology evidence. Weaknesses in it identified by Macfarlan JA may well have been perceived by the jury and they may have considered that it made no contribution to the Crown’s circumstantial case. But nor was it exculpatory. Whilst possibly not adding anything, in its nature this evidence was not capable of rebutting or cutting down other parts of the Crown’s circumstantial evidence. Even total rejection of the palynology evidence would not give rise to a reasonable doubt about the rest of the circumstantial evidence or about the ultimate inference. For the purposes of determining ground 1 the palynology evidence can therefore be disregarded. The reasonableness or otherwise of the verdict may properly be examined by reference to the Crown’s other circumstantial material.

Conclusion on ground 1

238. As stated in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ), in determining an unreasonable verdict ground:

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.

239. The test has been repeatedly affirmed in those terms, for example in Jones v The Queen (1997) 191 CLR 439 at 452; [1997] HCA 56; Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 at [49]; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66].

240. In M v The Queen it was said that in answering the question formulated as quoted above the appellate court “must not disregard or discount” two important considerations and, on the contrary, “the court must pay full regard to those considerations” (at 493). The two matters are:

[1] that the jury is the body entrusted with the primary responsibility of determining guilt or innocence [and]

[2] that the jury has the benefit of having seen and heard the witnesses.

241. The first of these two considerations was expanded upon in MFA v The Queen at [48]-[49] (McHugh, Gummow and Kirby JJ) in these terms (citations omitted):

Conventionally, the jury has been described as the constitutional tribunal for deciding contested facts. In respect of the specified cases, the jury occupies an undoubted constitutional status in the federal offences to which s 80 of the Australian Constitution applies. A jury is taken to be a kind of microcosm of the community. A "verdict of [a] jury", particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality.

In that context, and against the background of the tradition of the jury trial over the centuries, the setting aside of a jury's verdict is, on any view, a serious step. Hence, it is a step that assigns to the words "unreasonable" or "[un]supported" in s 6(1) of the [Criminal Appeal Act] a strictness of meaning that, in isolation or in other contexts, those words might not enjoy.

242. The “special authority and legitimacy” of jury verdicts does not exist only in the eyes of lawyers. Community acceptance of the outcome of serious criminal charges is attained through the verdict being that of a jury, a decision of fellow citizens. In a subsequent passage in MFA v The Queen (at [51]) their Honours referred to:

the undesirability of effectively replacing jury trial of serious criminal charges with trial before a court of criminal appeal comprising (normally) three judges who ordinarily see no witnesses, hear no evidence and decide the reasonableness and supportability of the verdict by reference to selected passages of evidence to which attention is drawn by the parties.

243. The High Court reaffirmed the primacy of the jury in R v Baden-Clay at [65]-[66] (citations omitted):

[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court 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”.

244. The second of the two considerations to which this Court must “pay full regard”, according to the majority in M v The Queen, is the benefit the jury will have enjoyed of seeing and hearing all the evidence. Their Honours formulated four propositions as follows “to provide authoritative guidance to courts of criminal appeal” (at 494-495) (numbering and emphasis added, citations omitted):

(1) It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. (2) That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. (3) If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (4) In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

245. The above passage is prefaced by this observation:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

In light of the immediately following passage (quoted at [244]) and subsequent pronouncements of the High Court, this observation clearly does not mandate a presumption that a guilty verdict is to be set aside as unreasonable if the appellate court experiences its own reasonable doubt. The guidance in the four propositions assists the appellate court to decide whether its own doubt (if it has one) ought to have been felt by the jury or whether, notwithstanding the court’s own doubt, the jury’s verdict should be regarded as having been reasonably open to them. The latter conclusion is not said to be confined to exceptional cases. Both for cases where the appellate court feels its own doubt and for cases where it does not, the High Court has said, in M v The Queen and in subsequent cases, that the ultimate and fundamental test is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt.

246. Neither in the four principles quoted from M v The Queen at [94] above nor elsewhere has the High Court said that where a reasonable doubt is felt by the appeal court a jury verdict may only ever be upheld if the case turned upon issues of credit affected by the jury’s assessment of witnesses’ demeanour. Principle (3) implicitly assumes that the jury is at an advantage over the appeal court, for which “full allowance must be made”, in the judgment of “discrepancies”, “inadequacies”, taint and other lack of “probative force”. The High Court has not said that in cases where the Crown case is entirely circumstantial the jury should be considered to enjoy no advantage. Moreover, in such cases it is not only the jury’s advantage that is to be respected. There is also the matter of the jury’s primacy in deciding guilt or innocence. Consistently with M v The Queen and the High Court’s later decisions, the judgment upon a circumstantial case is the jury’s to make, provided a verdict of guilty is reasonably open to them.

247. In SKA v The Queen it was held that this Court had erred in rejecting an unreasonable verdict ground. The majority (French CJ, Gummow and Kiefel JJ) identified the error at [20]:

The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence.

That is, their Honours construed the Court of Criminal Appeal’s reasons as having decided the unreasonable verdict ground on the test which would apply to a “no evidence” ground, which is recognised as raising a question of law.

248. The reasons of French CJ, Gummow and Kiefel JJ state clearly that the end to which an appellate court is required to “[make] its own independent assessment of the evidence” is that of determining whether a verdict of guilty was reasonably open to the jury. At [11]-[14] their Honours quoted passages from M v The Queen and referred also to MFA v The Queen. Consistently with those decisions their Honours expressed the test which should be applied by an appellate court in the following ways:

[21] To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. […]

[22] On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. […]

[24] To the extent that Simpson J considered whether she was satisfied that it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant, it appears that this consideration was undertaken without any weighing of the competing evidence; an exercise which the Court of Criminal Appeal was required to undertake to determine whether the verdicts of guilty were unreasonable or could not be supported. […]

249. These formulations follow from the language of M v The Queen and do not require that the appellate court should reach its own satisfaction of guilt as a precondition to rejecting an unreasonable verdict ground. They only require that the court examine whether the satisfaction of the jurors was reasonably open to them. MFA v The Queen and BCM v The Queen [2013] HCA 48 are examples of cases in which unreasonable verdict grounds were rejected without the appellate court having made its own finding that the appellant was guilty, to the court’s satisfaction, beyond reasonable doubt.

250. In SKA v The Queen French CJ, Gummow and Kiefel JJ also expressed the test which should have been applied in the Court of Criminal Appeal in these terms:

[20] … what should have been the central question – whether on the evidence the Court was satisfied that the applicant was guilty of the offences – …

251. This is a different “central question” from that given at [21], [22] and [24] in the same judgment, following the joint reasons in M v The Queen (see [238] above). In cases subsequent to SKA v The Queen, such as BCM v The Queen (at [31]) and GAX v The Queen [2017] HCA 25 (at [20]), the High Court has not affirmed a requirement that in the determination of an unreasonable verdict ground the appellate court should ask “whether on the evidence the Court is satisfied the applicant was guilty of the [offence]” as the “central question”.

252. Taking together all of the High Court jurisprudence on the relevant limb of s 6(1) of the Criminal Appeal Act, from 1994 to the present, I do not understand it to be a requirement that in every case where an unreasonable verdict ground is raised the appellate court must first determine whether it can to its own satisfaction exclude any reasonable doubt about the appellant’s guilt. Having made its own independent assessment of the whole of the evidence at trial, this Court may go straight to the question whether the guilty verdict was reasonably open to the jury, without forming its own view on guilt as a necessary preliminary.

253. Although Macfarlan JA finds there to be a reasonable doubt about the appellant’s guilt, this Court must decide whether it was open to the jury to find otherwise. I have assessed the whole of the evidence, including conflicts within it, and I am satisfied the jury’s verdict of guilty was reasonably open to them. In accordance with the High Court’s decisions an appellate court may not presume itself to be in as good a position as the jury to assess the evidence overall and may not, on the basis of any such presumption, set aside the jury’s conclusion that no reasonable doubt remained. The requirements to “pay full regard” to both the vesting in the jury of primary responsibility for the decision and the jury’s benefit of seeing and hearing the witnesses are entirely against an appellate court arrogating to itself such equality of position.

254. I do not consider that the crash investigators’ opinions on the ultimate question of where the collision took place were critical to the Crown’s discharge of its onus. Thus, even if this Court should assess that their opinions on the issue were inconclusive and that the jury should have so regarded them, it would not follow that the jury ought to have felt a reasonable doubt upon the whole of the evidence in the trial. I consider it was open to the jury to be satisfied that the collision occurred on the grass, whether they relied on Mr George’s reasoning and science, or on their own inferences from the physical circumstances, or both, perhaps also in combination with the evidence of motive if they accepted that and found it probative.

255. Whatever may be regarded as the centrality or importance of the expert evidence there was in my view nothing about it which placed evaluation of the competing opinions beyond the capacity of the jury reasonably to make, according to their findings of the factual premises, according to their perception of the strength of scientific knowledge and reasoning offered by the experts respectively and according to the jury’s view of the apparent objectivity of each witness. With respect to the latter, on my reading of the transcript it is conceivable the jury may have found Mr Booth glib and unjustifiably definitive in some of his responses to questions. They may have perceived a tendency of Mr Booth towards advocacy rather than objectivity. The jury may also have found a contradiction between his opinion that the road surface was too smooth to have marked the mirror but rough enough to have marked Mr McEvoy’s shoes. The jury may have found Mr George more understated, cautious and willing to make concessions and to accept qualifications. Upon those considerations it was open to the jury to give his opinions more weight.

256. This Court should not regard itself as at an advantage over the jury, or on an equal plane, by reason of the opportunity presented on appeal to review the transcript at length. That approach would deny the jury’s primacy and advantage, acceptance of which has been repeatedly and emphatically endorsed by the High Court. The concept that a jury is procedurally less able than an appellate court to assess any class of evidence cannot be reconciled with the stricture, recently reinforced in The Queen v Baden-Clay, that the “serious step” of setting aside a verdict as unreasonable be exercised with restraint. It cannot be reconciled with the respect which must be accorded to jury decisions. I would reject ground 1 of the appeal.

Ground 2

257. I agree with Macfarlan JA that the appellant’s conduct after the collision with Mr McEvoy was intractably neutral in the sense that there was no rational basis upon which the jury could ascribe his flight to a sense of guilt with respect to the elements of murder rather than to guilt of having caused grievous bodily harm or death by dangerous driving. I respectfully consider the learned trial judge ought not to have acceded to the Crown’s request that consciousness of guilt be left to the jury, as was done in the terms recorded by Macfarlan JA at [129].

258. It is regrettable that this direction was sought by the Crown, over the objection of the appellant. The case illustrates a common experience in criminal trials that from the Crown’s point of view submissions on lies and consciousness of guilt often add very little to otherwise strong cases and carry more risk than value. Here, the Crown in address placed some emphasis on consciousness of guilt as supporting the murder charge. On careful consideration these submissions rested upon no more than a bare assertion that the sense of guilt which might be inferred from the appellant’s flight must be attributed to murder rather than to the lesser, but still very serious, alternative count on the indictment.

257. The following passage from the Crown address illustrates this:

It’s the Crown case that the accused, by driving off, hiding the vehicle and doing the things that he did, was not only attempting to hide the fact that he was intoxicated at the time, but was seeking to hide from the authorities his involvement in the collision with this man because he knew full well, having deliberately struck the man, that he was going to be facing serious legal consequences if he was found out.

260. Submissions by the Crown on consciousness of guilt were interspersed with arguments that the appellant must have known who he hit and that he must have timed his run along Richmond Road in order to collide with Mr McEvoy. The address went very close to complete circularity, that is, arguing that because the appellant deliberately ran Mr McEvoy down, therefore his flight from the scene arose from guilt about that. Deliberate running down was what the Crown was endeavouring to prove. It could not then also be deployed as a premise of the argument as to what the appellant’s sense of guilt related to.

261. By directing the jury that it was for them to decide whether the appellant’s flight should be attributed to a sense of guilt of murder or, only, to a recognition that he had caused a motor accident while intoxicated, his Honour left open a decision that the jury had no basis for making. The Crown has submitted on the appeal that if the Court should reach this conclusion the proviso to s 6(1) of the Criminal Appeal Act ought to be applied.

262. In Lane v The Queen [2018] HCA 28 Kiefel CJ, Bell, Keane and Edelman JJ said:

[38] … The course of authority establishes that an error at trial may be such as to preclude the application of the proviso in the sense of precluding a conclusion that there was no substantial miscarriage of justice, irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. Put in a verbal formulation that amounts to the same assessment, some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable.

[39] A misdirection by a trial judge always involves an error of law, but "sometimes [it] will prevent the application of the proviso; and sometimes it will not”. It is necessary for the appellate court to consider the nature and effect of the error in every case.

Their Honours cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 and Kalbasi v Western Australia [2018] HCA 7.

263. In this trial there was a misdirection which in my view precludes application of the proviso. A direction to the contrary of that which his Honour gave was necessary to neutralise the Crown’s insupportable invitation to the jury to find the circumstantial case of murder supported by the appellant’s departure from the scene of the collision. I cannot be satisfied, in the words of the proviso, that “no substantial miscarriage of justice has actually occurred”. The jury may not have seen through the bare assertion and circularity in the Crown’s argument. In an entirely circumstantial Crown case the impermissible inference of consciousness of guilt of murder may well have assumed significance in their deliberations and conclusion. I would therefore uphold this ground.

Orders

264. The orders I would propose are:

1. Leave to appeal is granted.

2. Ground 1 of the appeal is rejected.

3. The appeal is allowed on ground 2 only.

4. Quash the appellant’s conviction of murder.

5. Order that there be a retrial of the appellant on the indictment.

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Amendments

03 October 2019 - Publication restriction removed.

Decision last updated: 03 October 2019