O'Connell v Director of Public Prosecutions
[2025] ACTCA 20
•27 June 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | O’Connell v DPP |
Citation: | [2025] ACTCA 20 |
Hearing Date: | 12, 13 February 2024 |
Decision Date: | 27 June 2025 |
Before: | McCallum CJ, Loukas-Karlsson and Taylor JJ |
Decision: | 1. Allow the appeal. 2. Set aside the verdict of guilty of murder and the sentence imposed by Baker J on 7 February 2024 and order a verdict of not guilty of murder. 3. Reserve the question of whether another verdict should be entered. |
Catchwords: | APPEAL – Appeal against conviction – verdict by jury – whether verdict unreasonable or unable to be supported by the evidence – whether there was a miscarriage of justice resulting from the prosecutor’s closing address – whether there was a miscarriage of justice resulting from the trial judge’s failure to direct the jury as to the meaning of the term “probability” – whether there was a miscarriage of justice resulting from the trial judge’s failure to remind the jury of other evidence when a recording of the principal prosecution witness’s evidence was replayed – whether jury ought to have entertained a doubt as to the requisite mental element of reckless indifference – role of appellate court |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5531 Criminal Appeal Act 1912 (NSW), s 11 Supreme Court Act 1933 (ACT), s 37O(2) |
Cases Cited: | Boughey v The Queen [1986] HCA 29; 161 CLR 10 Coughlan v The Queen [2020] HCA 15; 267 CLR 654 Cutter v The Queen [1997] HCA 7; 71 ALJR 638 Dansie v The Queen [2022] HCA 25; 274 CLR 651 Dawson v R [2025] NSWCCA 85 Doe v R [2008] NSWCCA 203 DPP v O’Connell (No 5) [2024] ACTSC 17 Gately v The Queen [2007] HCA 55; 232 CLR 208 Gipp v The Queen [1998] HCA 21; 194 CLR 106 JH v R [2021] NSWCCA 324 King v ZT [2025] HCA 9; 99 ALJR 676 Knight v The Queen [1992] HCA 56; 175 CLR 495 Liberato v The Queen [1985] HCA 66; 159 CLR 507 M v The Queen [1994] HCA 63; 181 CLR 487 Pell v The Queen [2020] HCA 12; 268 CLR 123 The Queen v Crabbe [1985] HCA 22; 156 CLR 464 R v Baden-Clay [2015] QCA 265 R v Baden-Clay [2016] HCA 35; 258 CLR 308 R v Grant [2002] NSWCCA 243 Royall v The Queen [1991] HCA 27; 172 CLR 378 Shamoun v R [2015] NSWCCA 246 SKA v The Queen [2011] HCA 13; 243 CLR 400 Stevenson v The Queen [2022] NSWCCA 133 |
Parties: | Michael O’Connell ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel K Weston-Scheuber with N Deakes ( Appellant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Prosecutions ( Respondent) | |
File Number: | ACTCA 21 of 2023 |
Decision Under Appeal: | Court: Supreme Court of the ACT Before: Baker J Date of Decision: 15 June 2023 Case Title: DPP v O’Connell Court File Number: SCC 251 of 2022 |
McCALLUM CJ:
1․Michael O’Connell appeals against his conviction for the murder of his intimate partner, Danielle Jordan. Ms Jordan sustained a severe head injury on 15 April 2022 when she fell onto the road from the appellant’s car as he drove away from her home. She died in hospital two days later after it was determined that she could not survive and life support was switched off.
2․The appellant was tried before Baker J with a jury. The prosecution case was that Ms Jordan was seated on the bonnet of the appellant’s car and that the appellant deliberately drove off knowing that she was on the bonnet. The central issue in the trial was whether Ms Jordan was on the bonnet of the car when she fell. The prosecution case on that issue turned on the evidence of a 13-year-old girl who was living with Ms Jordan at the time and who was out on the road with Ms Jordan and the appellant when he left (referred to in this judgment as Ms X). Her evidence was that Ms Jordan was on the bonnet the whole time from when the appellant drove away from Ms Jordan’s home. The trial judge treated that as an essential link in the prosecution case and directed the jury that they could not find the appellant guilty unless they were satisfied beyond reasonable doubt that Ms Jordan was on the bonnet when the appellant drove off. The statutory alternative of manslaughter was left to the jury on the basis of a dangerous and unlawful act.
3․The jury found the appellant guilty of murder. He was sentenced to a term of imprisonment of 15 years with a non-parole period of 10 years: DPP v O’Connell (No 5) [2024] ACTSC 17. There is no appeal against sentence.
Grounds of appeal
4․The appeal is brought under s 37O(2) of the Supreme Court Act 1933 (ACT) and is by way of rehearing.
5․An amended notice of appeal was filed in court at the outset of the hearing specifying the following grounds of appeal in paragraph 4 (omitting two grounds that were not pressed):
(a)The verdict is unreasonable and cannot be supported having regard to the evidence;
(b)There was a miscarriage of justice occasioned by:
i.The repeated reversal of the onus of proof by the prosecutor in his closing address;
…
ii.The prosecutor in his closing address urging the jury to draw inferences from the evidence which were not fairly available and which had not been advanced in the Crown case;
iii.The prosecutor in his closing address changing his case from that upon which he opened.
(c)The trial judge, having directed the jury be replayed the evidence in chief interview of the witness [Ms X], erred in failing to direct the jury to consider the recorded evidence in the context of other, countervailing evidence, whether recorded or not, and of any arguments of the accused relevant to that evidence.
…
(e)That the judge erred in failing adequately to direct the jury on the meaning of “probability” within s 12(1)(b) of the Crimes Act.
6․At the outset of the hearing of the appeal, the appellant sought leave to adduce evidence, being the affidavit of Nathan Deakes affirmed on 9 February 2024. The affidavit addressed three issues. First, it explained the reasons for an application to add a new ground of appeal. That part of the affidavit, including annexures A and B, was admitted. Secondly, the affidavit annexed material that formed part of the record of the trial (principally, photographs). That part of the affidavit, including annexures F to L, was also admitted.
7․However, the affidavit also annexed the submissions and transcript from the proceedings on sentence (annexures C, D and E). The Court reserved its decision on the admissibility of that material. That issue is addressed below in the discussion of the unreasonable verdict ground.
The unreasonable verdict ground
8․Ground 4(a), if upheld, would result in the entry of a verdict of acquittal, whereas the success of any of grounds 4(b), 4(c) or 4(e) would result in a retrial of the count of murder. Accordingly, it is appropriate to consider ground 4(a) first.
9․As already explained, the prosecution case relied critically on the evidence of a single witness, Ms X. The appellant submits that her evidence was inherently unreliable and that the evidence in the prosecution case apart from her evidence was either inconsistent with her evidence or at best neutral.
Principles to be applied
10․Ground 4(a) invokes s 37O(2)(a)(i) of the Supreme Court Act. That section provides that on an appeal against conviction this Court must allow the appeal if it considers that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.
11․The principles to be applied in determining such a ground of appeal have been settled by the High Court and are well known. The proper approach was summarised recently by this Court in Warne v The King [2023] ACTCA 1; 374 FLR 311 at [29]-[30] as follows:
… the role of the Court in dealing with this ground of appeal is not limited to considering whether there was evidence capable of satisfying a jury of the appellant’s guilt. The Court must conduct its own independent review of the evidence and consider whether it entertains a reasonable doubt as to his guilt. However, the Court will not act on its own view that there exists reasonable doubt if its disagreement with the jury can be explained by the jury having had the advantage of seeing and hearing the witnesses during the trial.
To put the point another way, success for the appellant on this ground involves a subjective event (the Court has a reasonable doubt) from which a normative proposition (the jury should have had the same doubt) must be established (cf R v Bragias [2016] NSWCCA 219, [5], [8] (McCallum J)). Proceeding from one to the other, in the light of M, involves excluding the advantage enjoyed by the jury as an explanation for it not having had the doubt entertained by the Court. That will usually be achieved if (as it was put in M) the evidence as it appears from the record “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”.
12․In a case where, as here, the impugned verdict rests critically on the evidence of a single witness, the appellate court must proceed on the premise that the jury accepted the evidence of that witness to be credible and reliable. The function of the appellate court in such a case was explained by the High Court in Pell v The Queen [2020] HCA 12; 268 CLR 123. While that was a case involving the evidence of a complainant in a sexual assault matter rather than a critical eyewitness, the principle must be the same. The High Court said at [39]:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
13․That statement of principle emphasises the primacy of the jury’s assessment of the witness. To demonstrate that a verdict resting on the evidence of a single witness accepted by the jury is unreasonable, or cannot be supported, the appellant must demonstrate inconsistencies, discrepancies or other inadequacy of such a kind as to demonstrate that although the jury that heard the evidence accepted it as credible and reliable, a rational jury ought to have entertained a reasonable doubt. Short of that, the verdict must stand.
14․In making that assessment, the appellate court must be astute to consider the nature of the alleged inconsistencies, discrepancies or inadequacy of the evidence and the implications of those shortcomings for the verdict. Not every inconsistency or discrepancy in an eyewitness account will indicate that the evidence is unreliable proof of the central events.
Overview of the prosecution case
15․To put Ms X’s evidence in context, it is necessary to give a brief overview of the prosecution case. The appellant and Ms Jordan had a tumultuous relationship. On the evening of 14 April 2022, he had come over to her house and stayed the night. Her house was at 6 Coutts Place. They had an argument at about 2:00am the following morning. He tried to leave. Ms Jordan was holding onto him trying to make him stay. He eventually got away from her and left but returned sometime later and they started arguing again. He tried to leave again. She sat on the bonnet of his car, a Mitsubishi Triton, to stop him from leaving. She would not get off.
16․The prosecution case was based solely on Ms X’s evidence that the appellant ultimately drove off at speed with Ms Jordan still on the bonnet. The case was opened on the basis that it was the act of driving at speed with Ms Jordan on the bonnet that caused her death. Ms X said that, when Ms Jordan would not get off the bonnet outside 6 Coutts Place, she (Ms X) stood in front of the car to stop the appellant driving off with Ms Jordan on the bonnet. He proceeded to drive forward slowly and she stepped back. That continued until they reached the top of Coutts Place. Ms X said the appellant then reversed back down the street before accelerating back up the street and around the corner into Alfred Hill Drive with Ms Jordan still on the bonnet. The prosecution case was that Ms Jordan fell from the bonnet onto the bitumen further down Alfred Hill Drive. The appellant put her in the car and took her to hospital.
17․The distance from 6 Coutts Place to the point on Alfred Hill Drive where Ms Jordan fell was 266.8 metres. The prosecution case was that the appellant drove that whole distance with Ms Jordan on the bonnet of his car knowing that she was on the bonnet of the car.
18․At the hospital, the appellant told a number of people, including members of Ms Jordan’s family and medical staff, that Ms Jordan had fallen from the stairs at the back of the house. The appellant later admitted to police that that was a lie. However, the prosecution did not rely on those lies as evidence of consciousness of guilt. They are of course relevant to an assessment of the appellant’s credibility.
19․After the appellant left in his car to take Ms Jordan to hospital, Ms X went back to Ms Jordan’s house and fell asleep. She did not have a mobile phone. At some point she became aware that the appellant had told family members that Ms Jordan had fallen from the stairs in her backyard. Ms X’s mother was one of the people to whom the appellant gave that false version of events. The mother gave evidence in the trial that the appellant had sent her a text message saying something like “Hey mate. Just wanting to let you know that Danielle has fallen off the steps out of her backyard and that she’s having surgery on her head”.
The ‘000’ call
20․After learning what the appellant was telling people, Ms X rang ‘000’ in the company of her mother. That call was made at about 1:30pm on 15 April 2022. A recording of the call (edited to eliminate irrelevant material) was played to the jury. A transcript of the edited recording was given to the jury as an aid and marked for identification.
21․Ms X told the operator that her friend was in hospital “with tubes keeping her alive because of a fight she had with her boyfriend”. She said, “And, um, I was there and I witnessed the whole thing”. Ms X’s mother then told the operator that the boyfriend was telling “a whole different story to all of the family that is at the hospital”. The operator asked Ms X what happened. The conversation continued as follows:
Ms X: Um, basically, they were fighting. And then, um, she was sitting on the bonnet of his car, trying to say, ‘Michael come inside. I want to talk to you. Don’t leave.’ And then he was really mad and cracked out. And I was standing in front of the car so he wouldn’t drive off with her on the bonnet, like – you know.
ACT Police: Yeah.
Ms X: And then I got scared because he was coming at me full speed. So I moved and then he just went and zoomed – like, I literally couldn’t see the car. So I started sprinting. Mind you, she’s still on the front of the car. So I start sprinting. I hear a screech ---
ACT Police: So he’s driven with her on the front of the car?
Ms X: Yes. And then I hear a screech and then a thud, so I start sprinting. I see Michael pick up Danielle, put her in the car, and then I hear him say ‘Baby, I’m so sorry.’ So I start sprinting ---
22․In response to further questions from the operator, Ms X confirmed that the appellant drove off with Ms Jordan on the bonnet of the car and that he “took her, like, around the corner” while she was still on the bonnet. Ms X said she did not see Ms Jordan fall because she (Ms X) was still at the top of her street and that they “zoomed” to the next street. She said, “so I couldn’t – I didn’t see it but I heard, like, screech, and then I heard a thud, so I started sprinting around the corner”. She said she then saw the appellant pick Ms Jordan up off the ground and put her in the car. She said Ms Jordan wasn’t talking and she had “blood everywhere”.
Initial interview recorded at Coutts Place on 15 April 2022
23․Later that day, police went to Coutts Place and spoke to Ms X at the scene of the incident. That conversation was recorded and there was a transcript of the recording which was marked for identification. However, the recording was not played to the jury and they were not given the transcript. Instead, the evidence was led through one of the police officers who was present during the interview, Constable Mann. For that reason, although the transcript of the recording was included in the appeal books, I have considered only the evidence of Constable Mann, as that is what was before the jury.
24․Ms X told Constable Mann that she was woken at about 2:00am that morning by “banging and clanging and shit smashing”. She got up and told the appellant and Ms Jordan to “calm the fuck down”. She went back to bed and got up again at about 4:00am.
25․The appellant had come in and “just started like ranting and raving”. Ms Jordan went out the front and sat on the front of the car because there had been an earlier incident involving a vape that ended up in the car (inferentially, Ms Jordan’s vape and she wanted to get it back). Ms Jordan was sitting on the bonnet of the car. She said to the appellant, “can you give me my vape and come inside because I want to fucking talk to you”. The appellant was trying to drive off with Ms Jordan on the bonnet, so Ms X stood in front of the car. She said she was “shitting herself the whole way up the street that she was standing in front of the car”. When she was at the top of the street (“we got to the top of the street”), the appellant reversed “back down to here”, where she was standing at the time of the interview. Constable Mann said that was just out the front of her house in Coutts Place.
26․Other evidence established that the distance from the top of the street to where they were standing was about 57 metres. A car reversing or rolling backwards could travel the best part of that distance in 10 seconds (the significance of this point is explained below). In assessing Ms X’s evidence about the reversing down the hill, it must also be recalled that she was describing the distance the Triton moved backwards away from her as she perceived it from the top of the street, in the dark, at a time when she was extremely stressed.
27․Ms X told police the appellant then “put his foot down all the way on the pedal and went so fast”. She thought he was going to hit her, so she jumped out of the way. The appellant turned left “and then just like zoomed”. Within a split second she couldn’t see the car anymore, but she could still hear it. She started sprinting down the road and she heard brakes, like a screech and then a “doosh”, as if a body had “dooshed” on the ground. She kept running and then saw the appellant picking up Ms Jordan from the road and putting her in the car. The appellant was saying “Baby I’m so sorry, I’m sorry”. The appellant started trying to tell Ms X what had happened and she didn’t care, she just said “get her to the fucking hospital now, if you don’t I’ll fucking kill you”.
28․Other evidence in the trial established that the appellant arrived at Calvary Hospital at 4:51am.
Evidence in chief interview
29․The next conversation between Ms X and police was the recording of her evidence-in-chief interview two days later, 17 April 2022, starting at about 12:30pm. That interview was also conducted at the scene of the incident. It may be noted that the jury went on a view to that scene, which must inevitably have enhanced their capacity to assess Ms X’s evidence and the CCTV footage.
30․At the hearing of the appeal, at the invitation of the appellant, the Court watched part of the audio-visual recording of that interview (from questions 80 to 120) for the limited purpose of giving spatial context to the answers given. This approach accorded with the remarks of the High Court in Pell where the Court accepted at [36] that, in cases where there is “something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound”, there will be a “real forensic purpose” for the appellate court to examine the video-recording. The physical features of the area in question are important to an understanding of the evidence in this case. In adopting that course, I have been mindful of the caution given in Pell at [37] that, in watching part of an available video or audio recording, the appeal court “should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box”. That is neither appropriate, having regard to the constitutional role of the jury as the tribunal of fact, or necessary, having regard to the principle stated in Pell at [39] set out above that the function of the appeal court assumes as a premise that the evidence of the complainant (or witness) was assessed by the jury to be credible and reliable.
31․The interview followed the usual format of police first asking the witness to tell them everything that happened without leaving anything out, then going back and teasing out any further detail required.
32․Ms X began with a lengthy narrative of what she said had happened. She told police the appellant came over and it was his payday. He had not been over in a while because they had a fight. Then he “just randomly came over”. They seemed happy, so Ms X went to bed. She woke up at about 2:00am to “something smashing” and Ms Jordan and the appellant arguing. The appellant was trying to leave the house and Ms Jordan was not letting him leave. Ms Jordan was holding the appellant’s shirt and would not let go. The appellant dragged the shirt down the internal hallway with Ms Jordan still holding onto the shirt (other evidence established that she weighed about 47kg). The appellant ultimately freed himself and left but returned later that morning, at around 4:00am. They started arguing again. Ms Jordan, the appellant and Ms X ended up out the front of the house.
33․Before summarising the next part of Ms X’s evidence, it will be helpful to explain that Coutts Place, where Ms Jordan lived, is on a hill. At the bottom of the hill, it ends in a cul-de-sac. At the top of the hill, it meets Alfred Hill Drive in a T-intersection. Ms Jordan’s house is roughly halfway between the cul-de-sac and the T-intersection. The appellant’s car was facing up the hill towards Alfred Hill Drive.
34․Ms X said that they got outside and the appellant was leaving. Ms Jordan did not want him to leave “so she jumped on the bonnet”. Ms X was telling Ms Jordan to get off the car and Ms Jordan was telling the appellant to come inside because she wanted to talk. The appellant then got out of the car and went down the street towards the cul-de-sac. Ms Jordan “dived in the window [of the car] to find her vape”. The appellant started walking back up the street saying, “is she in my car?”. The appellant dragged Ms Jordan out of the car and she again asked him to come inside and talk. She then got back onto the bonnet. The appellant got back into the car and Ms X got on the side of the car. Ms X said to the appellant “just get the vape and I’ll get her off the car and, like, we can go inside”. However, the appellant started driving so Ms X got off the side of the car and stood in front of it with Ms Jordan still on the bonnet. Ms X was telling Ms Jordan to get off the car.
35․The appellant started driving slowly towards Ms X. She kept taking a step back, and a step back, and he kept coming towards her. They did that all the way up the street. Then he reversed “all the way back down to Danielle’s place”. Ms X was still at the top of the street. She said the appellant then “put his foot down” and was coming straight towards her, so she jumped out of the way. He turned left and headed off down Alfred Hill Drive. She ran after him but stopped to walk and catch her breath after about a block. Then she heard “a screech and, like, a doof”, so she started sprinting again. She did not see Ms Jordan fall from the car. As she approached the point where the car had stopped, she saw the appellant get out of the car, walk to the back of the car, pick Ms Jordan up and put her in the passenger seat.
36․Ms X said she looked at Ms Jordan and saw that she was “all, like, fucked up” and that the appellant said, “I’m sorry, mate, I didn’t mean to do it” and “I’m sorry Bub, I’m so sorry, I didn’t mean to do that”. He got in the car and went to explain what happened but Ms X did not care, she just told him, “Take her to the fucking hospital or I’m going to kill you”. He drove off. She picked up a little blue rock from the road that had fallen out of Ms Jordan’s pocket. Then she went back to the house and fell asleep.
37․In answering further questions, Ms X gave some further detail but her account remained consistent. She said Ms Jordan was sitting cross-legged on the bonnet. She said at the point when the appellant was leaving the second time, Ms Jordan was calm because she did not want him to leave so she calmed herself down. She said the appellant was “still, like, schizo”, “like, really angry”.
38․The police officer asked Ms X to describe how they moved up the road. The interview continued as follows:
Interviewer: So can you describe how that happened?
Ms X: Basically, like I was standing, like – after, like, he wouldn’t, like, give me the vape, I walked in front of the car, so he wouldn’t leave. And then he was slowing going forwards, and I was just slowly walking backwards, and he was just slowly going forwards. And then we did that all the way to top of the street. And then he reversed all the way down. And I was just, like, standing there, and I looked at him and I was, like, ‘Fuck.’ And then he just put his foot down and was, like, coming straight for me. So then I jumped out of the way.
Interviewer: Okay. And where was Danielle when the car went up?
Ms X: On the bonnet.
Interviewer: The whole time?
Ms X: Yes.
Interviewer: Okay. So it’s come back down, and then you said that he’s put his foot down?
Ms X: Mm-hmm.
Interviewer: How did you know he put his foot down?
Ms X: Because he – like, he was, like, at a stop.
Interviewer: Yeah.
Ms X: And then he just instantly just, like, went so fast up the street, like, coming for me. So I jumped out of the way, yeah.
Interviewer: So when he’s gone fast up the street, coming for you, where were you standing exactly?
Ms X: Like, in the middle of the road up there.
Evidence in the trial
39․Ms X’s evidence in the trial was pre-recorded in May 2023, when she was 14. In cross-examination, she accepted that, on the morning of these events, she had been smoking cannabis with Ms Jordan and had not had much sleep. She further accepted that she blames the appellant for the death of her friend. She agreed that she spoke to him by telephone when he was still at the hospital (and presumably after she had called police) and said, “have fun being locked up”. However, it was not put to her at any stage that she was lying about having seen Ms Jordan on the bonnet of the car when the appellant was driving it.
40․Ms X was cross-examined about how far the appellant reversed the car before driving straight at her. The exchange was as follows:
Mr White: Now, you have said – you said in the interview, if you remember this that at one stage Michael reversed to the end of the street or towards the end of the street and then I think you – the expression you used was, ‘He put his foot down and drove the car at you’?
Ms X: Yes.
Mr White: And I think you said in the interview that in fact that was the time when the car continued around corner and that’s when ultimately Danielle fell off the car further down Alfred Hill Drive. Is that correct or not correct?
Ms X: Correct.
Mr White: So just to be very clear. You say that Michael took the car right back to the end of Coutts Place. Is that correct or not correct?
Ms X: Correct.
Mr White: Put his foot to the floor – in other words, put the gas on so the car came up at speed towards you. Is that correct or not correct?
Ms X: Correct.
41․As noted in the prosecution’s appeal submissions, the first question in that exchange was misleading. Ms X had not said at any point before then that the appellant reversed to the end of the street. She had said that he reversed from the top of Coutts Place to Danielle’s place, which was roughly halfway down the street.
42․It was put to Ms X that, before the car went around the corner, it was stopped. She disagreed. It was further put to her that she did not see whether Ms Jordan was on the bonnet of the car when it left Coutts Place. She said she saw Danielle on the bonnet at that time.
43․Ms X agreed with the cross-examiner that when she spoke to police on the day of the incident and two days later, she was confused about “some of the details that had happened”. The main “detail” about which she was pressed was her confusion as to the particular intersection at which the accident happened. On the afternoon of 15 April 2022, Ms X was asked to take police back to the intersection where Ms Jordan fell. She took Detective Janssen to the corner of Alfred Hill Drive and Levey Place, whereas in fact it was further along Alfred Hill Drive, at the next intersection, that Ms Jordan fell. When Ms X took police to the intersection of Alfred Hill Drive and Levey Place, she became confused as to why there was no blood there. She inferred that the appellant must have washed the blood away. A police officer then went further down the road and found blood at the next intersection.
44․Ms X also told police she had stopped to catch her breath at Flower Place. In cross-examination, when being pressed as to why she would need to catch her breath so close to where she started, Ms X told the cross-examiner that Flower Place was further from Coutts Place than Levey Place. That turned out to be wrong, as she readily accepted when she was shown a map. The explanation was that she was confusing Flower Place with Crossley Crescent.
45․That is very much the kind of confusion the jury was well-placed to assess. Parsing and analysing a cross-examination on paper can tend to amplify apparent weaknesses that were assessed and properly dismissed as insignificant by those listening to the evidence as it was given.
46․The appellant relies on Ms X’s confusion about the streets in support of ground 4(a). I do not accept that it has the significance the appellant contends. It does not derogate from her consistent and repeated evidence that Ms Jordan was on the bonnet of the appellant’s car as he turned out of Coutts Place and drove off down Alfred Hill Drive. Ms X had sprinted along Alfred Hill Drive after her friend, in the dark. She paused to catch her breath but then, after hearing a screech and a sound she took to be the sound of her friend falling from the car, the very outcome she had tried to prevent, she took off again. As she was running towards that intersection in the dark, she was watching the appellant pick up Ms Jordan, who was covered in blood, and put her in the car. She was not counting intersections.
47․It is hardly surprising that, when Ms X was asked later the same day, in daylight, to take police back to the intersection where Ms Jordan fell, she pulled up short. The distance between the top of Coutts Place and the point on Alfred Hill Drive where Ms Jordan fell was measured by police at 209.9 metres. On the morning of the incident, Ms X was sprinting that distance in the dark as fast as she could go. It is unsurprising that, when she went back with police later that day, in daylight, she experienced the distance differently.
48․Ms X’s confusion about the intersection where Ms Jordan fell is not something that should engender general scepticism as to the reliability of her evidence. It is not as if there was no fall, or no blood. The identification of the wrong intersection in different circumstances on a surburban Canberra street with several intersections does not cause me to doubt the reliability of Ms X’s account of the appellant’s conduct.
The CCTV footage
49․The prosecution called evidence from Mr Fritschy, who lived on Alfred Hill Drive near the intersection with Coutts Place. His home had a CCTV security camera which was activated by sound or motion. Mr Fritschy was in Queensland at the time of the incident but had remote access to the footage from the camera. After hearing about the incident on the news, he isolated the relevant footage and provided it to the informant, Constable Love.
50․Mr Fritschy’s house was on the opposite side of the road from the top of Coutts Place and a few houses down from that intersection. The CCTV camera was positioned on the outside wall of the house and was angled into the courtyard. The angle of the camera was such that the intersection of Coutts Place and Alfred Hill Drive was caught in the background, albeit mostly obscured behind the courtyard wall and a considerable amount of foliage. This meant that the footage captured the appellant’s headlights and, at times, a view of the car when it was in the intersection, when it turned left into Alfred Hill Drive and as it travelled along Alfred Hill Drive. The parts of the footage that are relevant occupy only a small portion of the whole screen. The quality of the images is poor.
51․For the first five seconds of the footage, the headlights cannot be seen. The soundtrack at that time includes several sounds that are difficult to distinguish, including several knocking sounds (possibly a car door but that is by no means clear), a human voice and, more clearly, the sound of car tyres screeching slightly as the car lurches forward. After the car tyre sound is first heard, the headlights come into view. At that point, the headlights can be seen only very faintly, as tiny pinpoints. The car can then be seen and heard lurching forward before stopping again, at which point the sound of an engine starting is heard. Ms X did not say anything about the engine stopping and being restarted. However, having listened to the audio repeatedly, I do not think the omission of that detail is significant. The stopping and restarting of the engine happened very quickly and formed part of what appears to have been a process of inching the car forward in the manner described by Ms X in her EICI when, on her evidence, she was standing in front of the car moving backwards step by step to stop the appellant from driving off with Ms Jordan on the bonnet.
52․As soon as the engine restarts, the headlights can be seen briefly moving backwards (back down Coutts Place towards Ms Jordan’s home) and a man can be heard shouting something (either “fuck!” or possibly “aghh!”). The headlights then disappear completely from the screen for about five seconds. This coincides with the engine sounding quieter, consistent with the hypothesis that it is moving further away from the CCTV camera for those five seconds. That is ample time for the vehicle to have reversed back to 6 Coutts Place or at least the best part of that distance. When the headlights reappear, the sound of the engine gets louder again and the car is clearly turning left, as Ms X described. As the car turns the corner, Ms X is heard to shout “Michael!”. The car proceeds along Alfred Hill Place before going out of sight off the righthand edge of the screen.
53․About 10 seconds later there is the sound of a sudden screech and, almost instantaneously, a man (accepted to be the appellant) first shouting “you dickhead!” and then some further, higher-pitched words (possibly “fucking idiot”). A further 10 seconds later, Ms X is seen running across the screen in the direction of the car. No other person is seen crossing the screen separately from the car.
54․As discussed above, Ms X said that, after the screech, she heard a “doof” sound. It was put to her in cross-examination that she did not hear that sound. It may be accepted that a sound of that description cannot be heard on the audio from the CCTV camera. It does not follow that Ms X was mistaken, or that her evidence that she heard a sound is unreliable. By the time she says she heard that sound she was closer to the point of the fall than to the CCTV camera. Furthermore, it is beyond dispute that Ms Jordan in fact fell. It is not impossible that Ms X heard her fall, or heard some other sound at that point that was not picked up by the CCTV camera equipment.
55․The appellant submitted that the CCTV footage is entirely inconsistent with Ms X’s evidence. He submitted that the CCTV audio and visual shows the vehicle’s engine being “started while it is parked at the top of Coutts Place, drifting back slightly (as for a manual vehicle) and then turning the corner”. The appellant submitted that there was no time for him to have started the engine, reversed to the bottom of Coutts Place with Ms Jordan on the bonnet, and then driven at speed towards Ms X.
56․I do not accept that submission. As already noted, the sound of the engine starting follows immediately after the sound of the car lurching forward. It is not the sound of a parked car being started. It was open to the jury to interpret the audio as the sound of the car stalling as it was inched uphill and then immediately being restarted. Furthermore, I do not accept that there was no time for the appellant to have reversed back down Coutts Place before driving back at speed towards Ms X. As noted above, the video footage shows the headlights disappearing from view for five seconds. That is ample time for the car to have reversed some distance back down the road. The roar of the engine described by Ms X can be heard on the audio, as can her calling out “Michael!”. The fact that she called out and the desperate tone in which she did so is consistent with Ms Jordan still being on the bonnet at that time. Ms X can be seen sprinting after the car, exactly as she described. There was no reason for her to chase the car if her friend was no longer on it. She said her friend was on the bonnet the whole time and I see no reason to doubt that account.
57․It may be accepted that Ms Jordan cannot be seen on the bonnet of the car in the video footage, but nor can she be seen on the back of the car, or running behind it. It is the fact that Ms Jordan ended up some 200m further down the road. She must either have been on the car or running behind it. But the video footage clearly shows Ms X running after the car and no other person can be seen crossing the screen on foot at any time. The only rational explanation is that Ms Jordan was on the car as the appellant sped off down Alfred Hill Drive. The CCTV footage is otherwise equivocal, as she cannot be seen on either the bonnet or the back. For those reasons, I reject the appellant’s contention that the CCTV footage shows that the version of events given by Ms X did not occur.
Appellant’s Record of Interview
58․The appellant participated in a recorded interview with police on 16 April 2022. That was the day after the incident but the day before Ms Jordan’s life support was turned off. Accordingly, the allegation put to the appellant by police was of culpable driving causing grievous bodily harm. In short, his version was that Ms Jordan was not on the car when he turned the corner into Alfred Hill Drive and that she must have run after him and jumped on the back when he stopped (in Alfred Hill Drive) to check that he had everything. It is nonetheless important to consider his answers on those matters in full.
59․In accordance with the common interview procedure, police began by asking the appellant to tell them about his involvement in the matter. The interview continued as follows:
Interviewer: Please don’t leave anything out. Okay, mate?
Appellant: There was nothing – nothing there in that respect at all. See, um, when I left – I was leaving the house, she jumped onto my car and grabbed – bent my, um, windscreen wiper back, and then – then I jumped out and then she got off the car. And then, um – and then I drove – I drove – drove onto the road and then they – then she jumped back on the car again, and she wouldn’t get off. I ended up walking, and leaving my car there where it was, and walked down – down the street. And then, um – and then we – I end up getting – getting, um, back and went inside again for a bit. That was it. And then it just – and as I walked – walked out, I said, ‘I can’t be here’. Like, because I was just letting her know that, like I know how much she wanted to be here, but I couldn’t be there because of obvious reasons.
Interviewer: Mm-hmm.
Accused: And, um, so she was trying to stop me again, and stop me from going, and (indistinct). And then, um, yeah, she jumped back on the car and then she jumped onto the back or whatever, and I said, ‘I couldn’t – I wasn’t – wasn’t going to go anywhere’. So ended up – she got off again, and ended up getting – getting me driving up the road a bit. And then she caught up and jumped back on the car again and then I went out of the car, and then she tripped and went – as soon as I got out of the car, she tripped, I think. And that’s when – that’s actually when she fell down ---
Interviewer: Yep.
Accused: --- and hit her head. And so it wasn’t me driving at all. That was just sad. It was just – just picturing that. It’s just (indistinct) fell off the bloody thing (indistinct) so I got out. No, it was just – it was just bloody obviously a real – um, a freak accident that shouldn’t have happened. If I hadn’t have been there, it wouldn’t have – it wouldn’t have happened. It’s my fault that – that (indistinct) for me being in there. Then she wouldn’t have had that accident. But no, it wasn’t me driving that had caused that injury. I wouldn’t – I couldn’t do that to anybody. Like – like (indistinct) happen to anyone. I don’t want it – would never do that.
60․It is significant that the appellant said during that answer that Ms Jordan “jumped onto the back or whatever” before he left Coutts Place. That issue is addressed below.
61․Later in the interview, the appellant was asked where the incident occurred. He said:
Um, well – it started off, like, in the street, and then I got – when I got off, I – I drove up the street and around the corner, and then I stopped to check – make sure I had (indistinct) and that, and that’s when Danielle caught back up to me again and jumped onto the bloody – jumped onto the back of the bloody ute. And then, when I got out to try and stop (indistinct) so I got out, and that’s when she – as I was getting out, she jumped – jumped off and then just tripped. She couldn’t get her foot in properly. Just tripped and fell straight onto the bloody thing.
62․He later volunteered the following:
But, um – yeah. It was just – the other one, she bloody – I bloody drove off, and then – then she caught up to me and I stopped to sort of make sure I had everything with me, and then she jumped back onto the back of the thing. Oh, she’s just so persistent.
63․The questioner then went back through the events step by step. The appellant said that, when he tried to leave, Ms Jordan jumped onto the bonnet and tore or bent one of the windscreen wipers (other evidence established that one of the wipers was damaged). After a series of questions about the car, the appellant returned to the topic of his attempts to leave and said:
But, yeah, they, um – at that point on, um, [Ms X] and that was out the front as well trying to stop me, and they – and that was the other part of it.
And they – they grabbed – [Ms X] was at the front of the car grabbing on – on – onto the bull bar and stuff and stopped me so I couldn’t drive. And that was – oh, sorry, Danielle wasn’t there and [Ms X] was at the side of the car.
64․After more questions about the car, the appellant again returned to the topic of his attempts to leave. He said:
So, um, yeah, that was after that. Like, I can’t remember. There was a few – few times that I just (indistinct) like, I went inside at one point, then I come back out and when they jumped on the car again, I walked down the street and left them there and left Danielle there, and come back. Um, yeah, that was the last time that Danielle had – Danielle had actually grabbed on. And then I drove off and then I stopped around the corner. And she’s chasing me, and she jumped onto the back, and then that’s when – and then I got out of the car and then she – and she’s jumping – coming to jump off and that’s how she literally fell down and – and – and – yeah. (indistinct) it wasn’t really nice to see it. And that was the worst thing I’ve ever seen in my life.
65․He later said that, after walking off and then coming back, he jumped back in his car and went to go. He said Danielle was not on the car when he came back, she was standing on the lawn and asking him to come inside. He then said:
And, ah, then I jump back in the car, and when I jumped back in the car, and then she’s tried to jump on it again.
Jumped on and that. And then that’s the third time, when I finally got – got out and, you know, I drove around the corner, when she’s – and then I stopped, and then she - she’s chased and caught up to me and jumped on the thing. And that’s exactly how it was.
66․He later said there had been at least two times when she got on the car to stop him leaving and he got out and walked away. He then described the third or last time he tried to leave, as follows:
Interviewer: At least twice?
Accused: Yep, and then the third time I – I – I – it was the last time anyway, was when I – literally she – she got – got away, and got around the corner a bit.
Interviewer: Mm-hmm.
Accused: And then I stopped the car because I thought maybe she had her wallet and everything there. And then she’s caught up and jumped straight on the back of – on my ute to try and stop me. And then I (indistinct) you know, went to get out of the car, and then when – as I was getting out, and then obviously she – she knew I was getting out of the car, so that’s when she went to come off and – and fell – fell off it then, tripped and fell off.
67․The questioner then confirmed by reference to a map that he meant he left Coutts Place and drove partway down Alfred Hill Drive. He confirmed that he stopped somewhere between Coutts Place and Levey Place and that was where Danielle caught up with him and jumped on the back of the car. He said the car was stopped at the time she jumped on because he had stopped to make sure he had everything. He said he thought he was “out of sight” when he stopped to check that he had everything. He said when he heard her and saw her on the car, he got out and went to get her off and that’s when she fell, as she was getting off the car. He said she hit her head and was unconscious “pretty much straight away”.
68․The appellant said that Danielle fell off the driver’s side of the car.
69․The appellant said that the only time he drove the car with Danielle on the bonnet was as he backed out of the driveway at her house. He said he was going very slowly at that point and the car moved about two metres. He said she was not on the car at any point when he drove up Coutts Place. He said she “caught up around the corner, when I stopped”.
70․In his answers to police, the appellant repeatedly said that he drove around the corner, that he stopped after driving around the corner and that that was when Danielle caught up with him and jumped onto the back of the car.
71․Police then told him that a witness had said he had driven up Coutts Place with Danielle on the bonnet, that he had reversed down, still with Danielle on the bonnet, and that he had then driven aggressively out of Coutts Place onto Alfred Hill Drive with Danielle still on the bonnet. He denied each of those allegations. He was told that the witness then heard a loud screech and a thump. He said he did not brake heavily at all. However, the screech can be heard on the CCTV audio.
72․The appellant said that the point where Danielle fell was not far from the middle of the street.
73․The appellant agreed that he had sent a text to Ms X’s mother saying:
Hey mate, just letting you know that Danielle is in hospital. She fell from the top of her back steps. They are doing scans on her now. You can tell [Ms X] as well. Thank you.
74․The appellant also agreed that he had told the same thing to others. He explained that he did not want to “tell people that she’d been a loony and – and – and running and chasing after me”. Police asked why he would tell Ms X the same story, knowing that she had seen where Danielle actually fell. He said:
She didn’t – she didn’t know – oh I don’t know. I just bloody told – told her that to tell – say that.
75․Importantly, whereas the CCTV footage is not inconsistent with Ms X’s account, it is inconsistent with the appellant’s account. Ms X can clearly be seen running along Alfred Hill Drive after calling out “Michael!”. No other person is seen on foot behind the car.
Other evidence
76․A crime scene investigator examined the Triton. Much of her evidence was equivocal as to the appellant’s guilt. She observed dust disturbance on the bonnet, which is unsurprising as it is common ground that Ms Jordan was on the bonnet at some point. She also found dust disturbance on the tonneau cover on the back of the Triton, which was a soft cover. Ms Jordan’s fingerprints were found on the sports bar on the back. The crime scene officer also found glitter on the tonneau cover which, based on other evidence, probably came from Ms Jordan.
77․The crime scene investigator said that fingerprints were also found on the bonnet but there was insufficient detail to identify whose they were.
78․The appellant submitted that this combination of forensic evidence obtained from the back of the Triton (the dust displacement, the fingerprints and the glitter) establishes the existence of a reasonable possibility that Ms Jordan was on the back of the Triton, not the front, when the appellant turned the corner and drove down Alfred Hill Drive and that he did not know she was on the Triton at that point. That is not what the appellant told police but it must still be excluded as a reasonable possibility. He noted that the CCTV footage does not reveal any calling out at that point, which he submitted supports the possibility that he did not know she was there. The appellant submitted that this evidence taken in combination should have caused the jury, acting rationally, to have a reasonable doubt.
79․However, as noted above, the appellant himself told police in his record of interview that Ms Jordan had jumped “on the back or whatever” when they were still at Coutts Place and before he drove off. Forensic evidence indicating that Ms Jordan was on the back of the Triton at some point does not disprove or cast doubt on Ms X’s account that Ms Jordan was on the bonnet when the appellant drove off.
80․The evidence of the forensic pathologist, Professor Duflou, did not take the issue any further. If anything, his evidence supported the prosecution case that Ms Jordan fell from the Triton while it was travelling at speed rather than falling after stepping off the car while it was stationary or almost stationary. He described injuries that suggested “further movement after impact” (grazes to the face and other parts of the body) which he did not think were consistent with a fall from a vehicle that was either stationary or moving at only one or two kilometres an hour. He accepted that, if Ms Jordan attempted to step off the side of the vehicle as it was moving at some speed and either slipped or jumped, that could have resulted in the type of head injury observed. However, he considered that it was much less likely that she fell from the vehicle while it was either stationary or moving very slowly. He gave two reasons for that opinion. First, he said the skull fracturing was more severe than would be expected from a fall from a stationary vehicle. Secondly, he said if there had been a fall from a slow-moving or stationary vehicle, if that is what caused the grazes and other injuries to the front of the face, “you wouldn’t get an injury to both the back of the head where the impact is and then the front from presumably rolling”.
81․The appellant submitted that all of the evidence, with the exception of the evidence given by Ms X, was either consistent with Ms Jordan having leapt onto the back of the vehicle and the appellant stopping when he saw that she was there, or neutral in that respect. If the only point of the submission was to emphasise that the prosecution case rested critically on the evidence of Ms X, I agree. There is no dispute about that. However, it appeared also to be suggested that some of the evidence was more consistent with Ms Jordan being on the back of the vehicle than on the bonnet. If that was the submission, I do not accept it. It is accordingly necessary to address each aspect of the evidence relied on to support the submission.
82․First, the appellant relied on the fact that the CCTV footage did not show Ms Jordan on the front of the vehicle. However, nor did it show her on the back, or on foot chasing the vehicle. Accordingly, all that can be concluded is that the quality of the footage is too poor to show where she was on the vehicle.
83․Next, the appellant relied on “the undisputed evidence that the appellant picked Ms Jordan up from the back of the vehicle”. That is equivocal. If she fell from the bonnet while the vehicle was moving, it would have come to a stop in front of her. Separately, the appellant relied on the fact that the medical evidence showed no signs of Ms Jordan having been run over. However, if she fell to the side of the vehicle, as the appellant told police, she would not have been run over. In short, the placement of her body by reference to where the vehicle stopped was equivocal.
84․Next, the appellant relied on the forensic evidence indicating that Ms Jordan had been on the back of the vehicle. That included her fingerprints on the sports bar, the dust disturbance on the tonneau cover, marks in the dust on the tonneau (possibly caused by a foot in a sock but ruled out to be from a shoe) and the glitter on the tonneau cover. However, none of that evidence fixes a time when Ms Jordan was on the back of the vehicle. As already noted, the appellant told police that, when Ms Jordan was trying to stop him from leaving, she “jumped onto the back or whatever” and “got off again” before he drove “up the road a bit”.
85․The appellant further submitted that there were no fingerprints located on the bonnet notwithstanding that Ms X demonstrated Ms Jordan “holding onto the lip of the bonnet”. Upon analysis of the forensic evidence, the fingerprint evidence concerning the bonnet is equivocal. Fingerprints were found but were not of sufficient quality to enable comparison with known fingerprints.
86․The appellant next relied on the fact that, while the appellant’s and Ms X’s voices can be heard on the CCTV audio, Ms Jordan is not heard to call out. He submitted that her silence at that time is “consistent with her stowing away on the vehicle rather than being driven terrified on the bonnet”. That is a submission that is available to be made, but the fact that she did not call out is not inconsistent with her being on the bonnet.
87․The appellant next relied on the fact that there was evidence that Ms Jordan had consumed methylamphetamine and cannabis, which could cause her to act in an aggressive or unpredictable way and engage in risk-taking behaviour. That evidence is also equivocal as to where she was on the Triton when she fell. Sitting on the bonnet while the appellant was in the driver’s seat with the engine running to stop him from leaving is equally as aggressive, unpredictable and risk-taking as jumping on the back while he was stopped in the street.
88․The appellant relied on the fact that the photographic evidence demonstrated that it would have been difficult for the appellant to see Ms Jordan if she was on the back or side of the vehicle. That is not a factor that makes it more likely one way or the other that she was on the back or on the bonnet. It is consistent with the accused’s explanation, but the prosecution case was that he deliberately drove knowing she was on the bonnet.
89․The appellant further relied on his reaction between breaking and stopping. It was submitted that he spoke in a tone of shock and surprise, saying “you fucking idiot” and “why did you do this to me”. Counsel submitted that a tone of surprise or shock is inconsistent with the prosecution case, where it is alleged that he deliberately tried to dislodge her. Again, that is a submission, but it is not a piece of evidence that stands in the way of acceptance of Ms X’s evidence that Ms Jordan was on the bonnet.
Alleged unreliability of Ms X’s evidence
90․The appellant submitted that, in light of the fact that other evidence in the case was either consistent with Ms Jordan having leapt onto the back of the vehicle or neutral, the prosecution case was entirely reliant on the jury accepting the evidence of Ms X that the appellant drove off with Ms Jordan sitting on the bonnet. So much may be accepted. That is the basis on which the trial judge directed the jury. However, I do not accept that Ms X was an inherently unreliable witness, as contended by the appellant.
91․The appellant contended that there were “numerous inconsistencies and inaccuracies” in Ms X’s evidence. First, he relied on the fact that she was initially confused about where the accident happened. For the reasons explained above, I do not think that is a factor that undermines the reliability of what she said she saw as the car rounded the corner.
92․Secondly, the appellant relied on the fact that Ms X claimed to have heard a “doof” sound after the sound of breaking whereas that sound is not audible on the enhanced CCTV audio. However, the point of the accident was almost 200m beyond the CCTV camera. The fact that the sound cannot be heard does not undermine Ms X’s reliability as a witness. The sound of the breaking is a high-pitched screeching sound. The sound described by Ms X as a “doof” is a very different kind of sound. There is no reason to infer that any sound she described should necessarily have been audible on the CCTV audio.
93․Next, the appellant relied on the fact that Ms X told police in her EICI that she was asleep when the appellant returned to the house at 4:00am (before the accident) but also said that she had been awake and smoking cannabis with Ms Jordan. The transcript of the EICI suggests that this was a correction by the witness rather than an inconsistency. She said that he came back at 4:00am and that she woke up from “just noise, I guess, and yelling. I don’t know”. Two answers later, when she was asked what his demeanour was like when he came back, she said “Oh, it just clicked. It came back to me”. She then told police that, when he left at 2:00am, she and Ms Jordan were sitting in Ms X’s room smoking bongs. If that can even be regarded as an inconsistency, it is an inconsequential inconsistency that does not derogate from the reliability of Ms X’s evidence on the central issues.
94․Next, the appellant relied on the fact that Ms X told police Ms Jordan looked “terrified” as the appellant drove off, whereas her evidence had been that Ms Jordan was sitting cross-legged facing the windscreen of the vehicle. That is not an inconsistency. Ms X was observing a dynamic situation where the vehicle she was watching turned a corner as she stood at the intersection. It is not implausible that at some point she saw Ms Jordan’s face.
95․Beyond those matters, the appellant relied on the contention that the CCTV footage demonstrates Ms X’s account to be “patently incorrect”. For the reasons explained at length above, I do not accept that characterisation of what is shown on the CCTV footage. On the contrary, I consider that the CCTV footage is consistent with the evidence of Ms X.
Submissions and transcript of proceedings on sentence
96․As noted at the outset of this judgment, the appellant sought leave to rely by way of additional evidence on material from the proceedings on sentence. That evidence was relied upon principally in support of the unreasonable verdict ground. It was also relied upon in support of ground 4(b)(iii) alleging miscarriage of justice arising from the prosecutor inviting the jury to draw inferences that were not fairly available. That aspect of the application is addressed separately below in the discussion of that ground.
97․The sentencing submissions were said to support the unreasonable verdict ground because the prosecutor, having addressed the jury to the effect that the CCTV footage was entirely consistent with the evidence of Ms X, appeared to resile from that position at the proceedings on sentence. When addressing the trial judge as to the findings her Honour should make for the purpose of sentencing the offender, the prosecutor identified two areas of the dispute between the parties. The first was “the degree to which, if at all, your Honour finds that the offender reversed part of the way down Coutts Place with the victim on the bonnet prior to moving forward and turning left into Alfred Hill Drive”. The prosecutor said he had not, in his sentencing submissions, adopted “in toto” the evidence of Ms X, saying “it’s not our case that the offender reversed all the way back down Coutts Place”. He said that the judge could not act on that evidence “in the face of the CCTV footage”.
98․There were two difficulties with that submission. First, as already explained, Ms X did not say (until the words were put in her mouth by a misleading question) that the offender reversed all the way down Coutts Place. At the time she was first asked about that by police, she was standing outside Ms Jordan’s house, which was roughly halfway up the street. She told police that he had reversed back down to where she was then standing. The inconsistency obtained during cross-examination, when the cross-examiner repeated his own misleading question, was not drawn to Ms X’s attention. She was not given the opportunity to correct or explain it.
99․Secondly, the CCTV footage does support the conclusion that the offender reversed down the hill to some extent. All that the prosecutor conceded was that the car had not been reversed all the way to the end of Coutts Place.
100․In any event, it is well established that, in determining an unreasonable verdict ground, the appeal court is required to make an independent assessment of the evidence. For that reason, the appeal court is not even bound by any finding or opinion of the sentencing judge, let alone a concession made by a prosecutor at the proceedings on sentence.
101․The High Court considered a related question in SKA v The Queen [2011] HCA 13; 243 CLR 400. In that case, in a judgment granting appeal bail to the applicant, the trial judge recorded his assessment that the applicant appeared to be “a perfectly honest witness” and also that he “found the complainant a very compelling witness”. The judge then said: “I find it impossible to see how any jury acting reasonably could be satisfied beyond reasonable doubt ... In my opinion the jury acting reasonably could not have convicted the accused”.
102․The NSW Court of Criminal Appeal dismissed an appeal against conviction. In his appeal to the High Court, one of the applicant’s arguments was that the Court of Criminal Appeal had erred in failing to take the trial judge’s opinion into account. The argument was framed by reference to the power of a trial judge under s 11 of the Criminal Appeal Act 1912 (NSW) to provide a report to the appeal court “giving the judge’s opinion upon the case, or upon any point arising in the case”. The High Court rejected that aspect of the appeal. Crennan J (with whom French CJ, Gummow and Kiefel JJ agreed) stated the principles that apply where such a report is provided at [112]:
First, whilst a trial judge's report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge's report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned.
103․Those principles were applied by the NSW Court of Criminal Appeal in Shamounv R [2015] NSWCCA 246, a case that considered the weight to be given to the findings of the sentencing judge.
104․For those reasons, I would reject annexures C, D and E to Mr Deakes’ affidavit, being the submissions and transcript from the proceedings on sentence, as additional evidence in the appeal.
Conclusion
105․Proceeding as I must on the assumption that Ms X’s evidence was assessed by the jury to be credible and reliable, my examination of the record of the trial has not persuaded me that, notwithstanding that assessment, the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. I would reject ground 4(a).
Prosecutor’s closing address
106․The remaining grounds invoke s 37O(2)(a)(iii) of the Supreme Court Act, which provides that this Court must allow an appeal against conviction if it considers that, “on any other ground” (apart from grounds (i) and (ii) in that section) “there was a miscarriage of justice”.
Application of rule 5531
107․Ground 4(b) contends that there was a miscarriage of justice resulting from three aspects of the prosecutor’s closing address.
108․The Director of Public Prosecutions submitted that the appellant requires leave under r 5531 of the Court Procedures Rules 2006 (ACT) to raise these grounds. However, that rule applies only in the case of grounds of appeal alleging failures on the part of the trial judge. The rule states:
Appeals to Court of Appeal—grounds of appeal against conviction or sentence
Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing:
(a)a direction given by the trial judge;
(b)the trial judge’s failure to give a direction;
(c)the trial judge’s decision about the admission or rejection of evidence.
109․The rule does not impose a requirement for leave to rely on a ground of appeal alleging a miscarriage of justice arising from the conduct of counsel. That said, the absence of objection at the trial by the party appealing, or the fact of that party’s agreement at the trial with the manner in which any objection was resolved by the trial judge, may inform this Court’s assessment of the ground for appeal. It is well recognised that those immersed in the atmosphere of the trial are ordinarily best placed to assess what is fair in the circumstances. In the present case, the trial judge consulted carefully with counsel in respect of every concern raised. In each case, trial defence counsel expressed his satisfaction with the manner in which the trial judge proposed that the objection should be addressed. That is a significant factor in assessing the contention, after the event, that aspects of the trial were unfair.
Reversal of the onus of proof
110․Ground 4(b)(i) contends that, during his closing address, the prosecutor repeatedly reversed the onus of proof. The appellant’s submissions focussed on individual remarks and did not address them in the order or context in which they were made. It is preferable to consider the points raised in the order in which they were made during the prosecutor’s closing address and to assess the fairness and likely impact of each remark in the context in which it was made.
111․The prosecutor began his opening address by acknowledging areas of the evidence where, by and large, there was no real dispute. He referred in that context to the fact that Ms Jordan’s attitude towards the accused was “excessively emotional” and that, in the early hours of the morning on which the incident occurred, there were a number of arguments, some of which became physical. He said, “it is against that background of a turbulent relationship that you come to assess the version of events provided by [Ms X]”. The prosecutor reminded the jury that Ms X had given several accounts on different occasions. He said, “she might be 13 but she presents as articulate, switched on and making absolutely no attempt whatsoever to dissemble or dodge or spin an answer or do anything other than tell police exactly what she can recall as best she can”. He submitted, “every time [she made a statement], the critical details of the acts leading to the death of Ms Jordan are retold by her, it’s the same”.
112․Before then going to the detail of Ms X’s various statements, the prosecutor paused to explain to the jury (in accordance with the decision of the High Court in Liberato v The Queen [1985] HCA 66; 159 CLR 507 but without referring to that decision), that:
this is not a case about competing versions. If a single one of you goes out into that jury room and asks the question “who do I believe” or “whose evidence do I prefer” then you have failed to discharge the oaths or affirmations that you took, because that is not the question. The question is: has the prosecution established the elements of the offence beyond reasonable doubt.
113․With that caution, the prosecutor turned to what he described as “the consistency and inherent credibility of [Ms X’s] version” against the “moving feast” that was the accused’s version. He proceeded to make a series of points about the consistency of Ms X’s statements with other evidence. In making that point, the prosecutor played the enhanced audio of the CCTV footage for the purpose of pointing out that the appellant’s tone shifted, just as Ms X had described.
114․The first remark by the prosecutor said to have conveyed a reversal of the onus of proof was made in that context. The prosecutor’s point was that there was objective evidence in the enhanced audio that the appellant’s tone changed. He said:
“after you hear the accused say ‘Del, fuck me dead’, while you may not be able to make out in any clear fashion the words that are spoken, the tone is consistent with the type of demeanour and words spoken about which [Ms X] gave evidence.
The point is, she is accurate again. This witness who, it may be suggested to you, was sleep-deprived, young, under the influence of cannabis, perhaps emotive to bend her version, is accurate again, even under the stress and pressure that your life experience might tell you she was experiencing as she arrived at that car.
Articulate and reliable, she may be, but she is still 13. Is she really going to include the words ‘I’m sorry, bub’ if she’s bending the truth in some way because by the time of her version, she has a dislike for the accused. Really?”
115․The appellant contends that the last sentence in that part of the prosecutor’s address was in the nature of a “why would she lie?” submission (a topic addressed below). I do not accept that submission. Read in the context of the point the prosecutor was making, the jury would not have focused on that single question (as the appellant has) as an invitation to reverse the onus of proof. A prosecutor is entitled to make submissions as to why a witness should be believed. This was that. The rhetorical point was, would a 13-year-old have the wit to add that kind of detail (that the accused said, “I’m sorry, Bub”) if she was embellishing? It was not an invitation to speculate about motive to lie.
116․The second remark complained of is in a different category. Unfortunately, shortly after the first remark (about five pages of transcript later), the prosecutor actually asked the rhetorical question, “why would she lie about that?” The question came at the end of a submission about the consistency of Ms X’s evidence, both as between her several statements given on different occasions and with the CCTV footage. The prosecutor noted that, at the time she spoke to police, Ms X did not know about “the forensics” or the CCTV footage. He was making a fair point, which was that the jury could not reason that Ms X had tailored her evidence to suit other evidence in the prosecution case because she was not aware of that evidence when she spoke to police. He was inviting the jury to accept for that reason that she had simply described what she had seen. The prosecutor then said:
Ms Jordan on the bonnet: consistent all the way through. And how on earth would a 13-year-old know it makes any difference whether she’s on the front or back? Why would she lie about that?
117․It is established that a jury should not be invited to speculate as to why a prosecution witness would lie. The vice of doing so has been described as “the risk that, in the search for an explanation for why false allegations might be made against the accused, the onus of proof is transferred from the Crown to the accused”: Doe v R [2008] NSWCCA 203 at [21] (Latham J, with whom Spigelman CJ and Hidden J agreed at [1] and [2]).
118․The prosecutor realised his mistake as he spoke and (as he later told the trial judge) immediately tried to “walk it back”, saying:
Now, the question is not why she would lie but if it is suggested to you somehow that she is mistaken or had some motive to tailor the version, you would be entitled, in my submission, to ask yourself why wouldn’t she just say she was on the back, if that’s what she saw, if that’s where Ms Jordon was.
119․Shortly after making those further remarks, the prosecutor suggested it might an appropriate time for a break. The trial judge agreed and sent the jury out, after which the appellant’s counsel made immediate complaint, raising two issues. The first concerned the rhetorical “why would she lie?” question. Secondly, counsel complained that the prosecutor was “haranguing” the jury in a manner and tone that crossed the line of appropriate rhetoric for a prosecutor.
120․Without accepting the complaint about tone, the trial judge suggested the prosecutor “moderate” it. He indicated that he would. As to the rhetorical question, her Honour accepted that such a question has a “clear tendency to reverse the onus”, but expressed the view that it could be remedied, first, by the prosecutor withdrawing it and secondly, by “forceful directions” in the summing up which counsel for the accused would be able to foreshadow in his closing address to the jury.
121․After the morning tea break and before the jury came back, counsel for the accused raised a further point, which was something the prosecutor had said about Ms X’s consumption of cannabis. The prosecutor had said to the jury that there was no basis for them to conclude that Ms X had anything other than “the same low level of cannabis that Ms Jordan had when her blood was analysed”. As Ms X’s blood had not been analysed, that submission should not have been made. There was simply no evidence as to whether she had smoked more or less than Ms Jordan or was affected to any greater or lesser degree.
122․Trial counsel submitted that there was “a hint of a reversal of onus” in the prosecutor’s submission. However, that particular complaint is not part of this ground of appeal; it is an aspect of ground 4(b)(ii) discussed below. It is recounted here simply as part of the narrative.
123․The trial judge (with respect, correctly) did not take up the “reversal of onus” point but responded that the difficulty was in saying there was “no basis” for concluding anything other than that both women were affected to the same degree whereas in fact there was no evidence on the issue either way. Neither counsel had explored that issue with Ms X in her evidence.
124․When the jury was brought back into court, the trial judge reminded them that counsel’s address is not evidence and that they must disregard any submission not founded in the evidence and disregard any speculation. The trial judge did not refer specifically to the submission concerning the consumption of cannabis at that time. That was an agreed approach. Before bringing the jury back, the trial judge had told counsel that she proposed to direct the jury (again) that what counsel say is not evidence; that they should disregard any submission that is not founded in the evidence and that they should disregard any speculation that is not in the evidence. Her Honour then said, “Unless you want to be heard otherwise, I wouldn’t propose to go further into this example”. Trial defence counsel responded “Okay”.
125․After the trial judge had given the jury the directions foreshadowed, the prosecutor picked up the judge’s point and repeated that the jury should disregard anything tantamount to speculation. He then outlined exactly what the evidence was on the issue of consumption of cannabis. In accordance with the exchange in the absence of the jury, he did not expressly withdraw the submission that there was no basis for concluding anything other than that Ms X and Ms Jordan were affected to the same degree.
126․The prosecutor then turned to the “why would she lie?” submission, which he did withdraw, as follows:
The other thing I need to correct is something I said to you about [Ms X’s] evidence of Danielle's location on the vehicle. The effect of what I asked you to do was consider what she says, but then to go on and question why she would be untruthful about that. You need to be really, really, really clear. That is a submission that I need to withdraw and it is not – I repeat not – a chain of reasoning that you are entitled to engage in. You can't do it. It follows from a number of things that I have already said to you: (1) the case is not a question of who do you believe; (2) the accused has nothing to prove – even now, even after giving versions, he doesn't have anything to prove; and (3), as I have said to you on a number of occasions, her Honour has said and will again, the prosecution bears the onus even now, even at this late stage, so you can't ask yourself the question why would she have said that if it wasn't true?
127․In due course (in her summing up), the trial judge proceeded to direct the jury as foreshadowed. Of course, that direction was given in addition to the general direction as to the onus of proof and the particular direction required in this case arising from the circumstance that the prosecution case depended on a single witness. All three directions are set out below.
302․There are three matters I observe in response to that concern. First, if in light of the questions asked by this Court seeking further submissions from the parties, the appellant had sought to amend his grounds of appeal to include reckless indifference as a specific issue under ground 4(a), I would have granted leave to do so and allowed the appeal: see similarly Gaudron J in Gipp at [23]. Secondly, the treatment of reckless indifference was raised in the appeal albeit under specific grounds alleging error in the trial. Finally, and perhaps most significantly, the focus of the unreasonable verdict ground being the factual foundation necessary for a finding of guilt for both offences, in my view necessarily and properly raises for this Court’s consideration whether, having concluded that Ms Jordan was on the bonnet of the vehicle when she fell from it, it was open to the jury to find the appellant guilty of murder.
303․Put another way, I do not consider reckless indifference to be a “second round” point on the appeal. It was raised as an issue for this Court to consider under other grounds of appeal and in coming to consider whether the verdict was unreasonable it is, as the appellant submitted, “inextricably” bound up in an assessment of the factual dispute around which the ground was framed.
304․Having determined that the issue was contested at trial and that my approach does not contravene the principles which guide this Court’s role, it follows that I do not consider that this Court is precluded from considering reckless indifference under ground (a).
Was it open to the jury to find that the appellant was recklessly indifferent when he drove his vehicle with Ms Jordan on the bonnet?
305․For the following reasons I have concluded that it was not open to the jury to find that the appellant was recklessly indifferent when he drove with Ms Jordan on the bonnet of his vehicle.
306․It was not enough that a reasonable or ordinary person would have foreseen the probability of death in the circumstances faced by the appellant. It was not enough that the appellant foresaw any harm, or even very serious harm, or that he realised death was possible and went ahead anyway. Proof of murder based on reckless indifference required proof beyond reasonable doubt of a state of mind on the part of the appellant that involved first, a realisation that death would probably occur and secondly, a decision to engage in the act of driving with Ms Jordan on the bonnet regardless of his realisation of that likelihood.
307․This was to be distinguished from proof of the alternative offence of manslaughter which did not require the prosecution to establish any specific intention on the appellant’s part to bring about an outcome beyond an intention to dislodge Ms Jordan from her position on the vehicle – a perhaps fine but necessary distinction. As was observed in Grant with respect to manslaughter on the basis of unlawful and dangerous act at [38]:
… the Crown does not have to prove that the act or omission was done (or omitted) with any specific intent, or that the accused personally appreciated or foresee [sic] that the act (or omission) was a dangerous one. The test of dangerousness in this regard, is an objective one, the relevant question being whether a reasonable person, in the position of the accused, would have realised that, by his or her act (or omission), the deceased was being exposed to an appreciable risk of really serious injury: Wilson v The Queen (1992) 174 CLR 313.
308․This was a matter where the appellant’s state of mind with respect to his knowledge of the probability of death occurring, and a determination to disregard that likelihood, had to be inferred from the evidence. The finding of guilt relied upon inferential reasoning as to his realisation of the probability of death and his determination to proceed regardless. As the trial judge directed, the jury were presented with a circumstantial case that included direct evidence. Accordingly, the prosecution relied on the drawing of inferences to prove the guilt of the appellant beyond reasonable doubt.
309․The nature and manner of the appellant’s driving as well as his conduct immediately before and after the event of Ms Jordan falling from the vehicle were all matters capable of influencing the drawing of an inference with respect to his state of mind. The inference necessary for the jury to draw about the appellant’s state of mind, as the trial judge directed, must be the only reasonably possible inference in the circumstances established on the evidence.
310․In my opinion, having deferred to the jury on the question of Ms Jordan’s position on the vehicle, it was not open to them to be satisfied that all inferences consistent with innocence had been excluded on the evidence.
311․In coming to that conclusion, I have considered the following matters.
312․First, the admission relied upon by the prosecution, “I shouldn’t have done it”, was neutral with respect to proof of the state of mind necessary to establish reckless indifference for murder. The presence of Ms Jordan on the bonnet of the vehicle was a finding necessary for murder and for manslaughter. “I shouldn’t have done it” does not admit of any matter that might distinguish between the two different mental elements. In addition, I observe that the prosecution did not rely on any lies contained in the appellant’s versions of the incident as evidence of a consciousness of guilt nor on the admission as to the establishment of reckless indifference.
313․Secondly, the nature and manner of the driving. Whilst the appellant’s driving was consistently characterised as “at speed”, it was not the case that the appellant was alleged to have been travelling at a speed above any applicable speed limit. The prosecutor submitted to the jury:
…there were various speeds posited between 30, 40, 50, 60 I won’t take you in painful detail through it. What I simply say to you is as you go about assessing the evidence, take all the assumptions in favour of the accused and what you still reach is a point where that vehicle was going fast. Fast in the sense of Ms Jordan is positioned precariously on the bonnet.
314․The “at speed” and “fast” description served to highlight that the prosecution case was that the vehicle was moving at a speed faster than “slow” and was not stationary when Ms Jordan fell from it. Professor Duflou’s evidence supported that the vehicle was moving and not “slowly” when Ms Jordan fell from it. So too the evidence of Ms X. Her evidence as to the speed of the vehicle as it drove toward her on Coutts Place was that it was “so fast” after the appellant “put his foot down all the way on the pedal”. Of course, Ms X, positioned as she was outside the vehicle, could not have known whether the appellant did apply the accelerator “all the way” and her evidence as to speed was her impression of it as the vehicle travelled toward and past her.
315․The evidence of Professor Duflou and Ms X sat alongside that of Leading Senior Constable Smorhun who was the prosecution expert witness with respect to the speed of the vehicle. Leading Senior Constable Smorhun made a number of significant concessions in cross-examination.
316․In his evidence in chief Leading Senior Constable Smorhun told the jury that the speed of the vehicle when it passed through the field of view captured by the CCTV camera was 42.5 kilometres per hour and that the vehicle continued to accelerate as it moved out of the frame of the CCTV camera “up until the point that it starts the emergency brake”. His evidence was that at the time the brakes were applied the vehicle was travelling at 63.1 kilometres per hour “rounded down” to 63 kilometres per hour.
317․In cross-examination Leading Senior Constable Smorhun conceded that discrepancies in the CCTV images left a margin of error because the images were possibly a “metre or two out” in terms of plotting where the vehicle was from the time markings recorded on the CCTV footage. The officer accepted that these discrepancies would affect the calculations that he made with respect to the speed of the vehicle.
318․The officer also conceded that when he calculated the speed of the appellant’s vehicle on the night, from the speed of the police vehicle that he drove along the route travelled by the appellant’s vehicle, there was a margin of error of three kilometres per hour.
319․The officer also conceded that the accuracy of speed calculations for speed under 100 kilometres per hour was plus or minus two kilometres per hour. The overall effect of which was a margin of error of at least five kilometres per hour. The officer conceded that the effect upon his calculations of the margins of error was that where he calculated speeds of 40 and 45 kilometres per hour, the actual speed of the appellant’s vehicle could have been 35 to 40 kilometres per hour or less.
320․Leading Senior Constable Smorhun also agreed in cross examination that the speed of the vehicle was indicative of “modest acceleration” and that the noise of the vehicle that he identified as indicative of acceleration was not indicative of “heavy or rapid acceleration”. He agreed that the vehicle could have accelerated at a much quicker rate than he calculated it to have increased in speed and that by the time the vehicle came to brake it was capable of having reached speeds “close” to a hundred kilometres per hour. He also agreed that his initial calculation that the vehicle was travelling at 63 kilometres per hour at the point of braking could have been as low as 51.5 kilometres per hour.
321․In light of the concessions made by the prosecution expert it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was driving 63 kilometres per hour when the brakes were applied after Ms Jordan fell from the vehicle.
322․To take an example of the effect of Leading Senior Constable Smorhun’s evidence on the calculation of the vehicle’s speed, applying the margin of error he conceded, or put another way, making the assumption “in favour of the accused”, reduced the speed of the vehicle from 42.5 kilometres per hour as it passed through the view of the CCTV camera, to 37.5 kilometres per hour or less.
323․The speed of the vehicle was a significant feature of the prosecution case because of the absence of other features of the appellant’s driving which supported an inference as to his intention to dislodge Ms Jordan (for the offence of manslaughter) or his advertence to the probability necessary to attribute to him (for the offence of murder) for example swerving or otherwise driving erratically. The prosecution case did not rely at all on the appellant applying the brakes of the vehicle as the act demonstrating an intention to dislodge Ms Jordan from the bonnet or as an act reflective of reckless indifference.
324․The closing submission by the prosecutor that there was no “material” difference between the vehicle travelling at 45 kilometres per hour and travelling at 63 kilometres per hour glossed over the significance of speed to the prosecution case. The significance of the speed of the vehicle required careful consideration to determine what the evidence could establish with respect to the speed of the vehicle and further, what the speed of the vehicle revealed, if anything, about the appellant’s state of mind. In the circumstances of this case the “painful detail” as to what the evidence demonstrated in relation to speed was critical to an assessment of the state of mind of the appellant and to proof of reckless indifference.
325․The evidence with respect to the speed of the vehicle also fell to be assessed alongside the CCTV footage which captured the appellant driving the vehicle. The CCTV footage, whilst too poor in quality to allow any unequivocal conclusion as to Ms Jordan’s position on the vehicle as the Chief Justice observed, nonetheless gave an indication of the speed at which the vehicle was travelling. In the CCTV footage the vehicle can be observed travelling at a pace that was not crawling along or very slow. Nor could it be observed to be travelling “fast”.
326․The manner of driving could also be observed in the CCTV footage. The vehicle maintained a straight course for the period it could be observed in the field of vision immediately in front of the CCTV camera along Alfred Hill Drive. There was nothing remarkable or erratic about the manner of driving. Any sounds made by the vehicle’s engine fell to be assessed alongside the evidence with respect to the speed and what could be observed on the CCTV footage as to the manner of driving. To the extent that the CCTV footage captured the vehicle turning left onto Alfred Hill Drive it did not demonstrate a dramatic escalation in the speed of the vehicle or in the manner of driving such that it appeared uncontrolled, erratic or more intense as to the risk it presented. This was the case for the entire period that the vehicle could be observed on the CCTV footage.
327․Thirdly, as the prosecutor did in his closing address to the jury, the Director described the position of Ms Jordan on the bonnet of the vehicle as “precarious”. It is important to recall what the evidence established. Ms X described Ms Jordan’s position on the bonnet as her sitting crossed legged on it and indicated that she was holding onto the “lip” of the bonnet, just below the windscreen wipers. It was a position, on Ms X’s version, that Ms Jordan was able to maintain while the appellant “inched” the vehicle toward Ms X up Coutts Place, reversed it back down to Ms Jordan’s house and drove it back up Coutts Place “at speed” until the vehicle turned left onto Alfred Hill Drive. Ms Jordan fell from the bonnet of the vehicle some 200 metres after the vehicle made the turn on Alfred Hill Drive. It was not a position that could be characterised as a “safe” one on a moving vehicle, but it was a position that Ms Jordan was able to maintain for a period while the vehicle was moving including, on the prosecution case, as it turned a corner.
328․Relatedly, the Director contended that “[a]s a matter common sense, a person on the bonnet of a moving vehicle presents a high risk of probable death”. The appellant pointed out that for the appellant to be aware of the probability of death “it must be the case that driving with the deceased on the bonnet at a speed between 35 and 40 km/hr would in probability result in the death of the deceased. (That is, for the appellant to be aware that something is probable, it must in fact be probable)”.
329․Whether the act presented a “high” risk of probable death or a risk of probable death is a matter that seems to me to be dependent on the circumstances in which it occurred. That probability is to be distinguished from a characterisation of the act as one which carried inherent risk. The risk involved may not always include death. By reference to the nature, extent and mechanism of the injury suffered by Ms Jordan, Professor Duflou excluded the possibility that the appellant’s vehicle was “stationary or moving at most one to two kilometres an hour” explaining that “skull fracturing was more severe than expected from a fall from a stationary vehicle”. The available inference being that the speed of a vehicle when a person was travelling on the outside of it was a factor which could affect the severity of harm that might be suffered.
330․There was evidence about the make and model of the vehicle the appellant was driving and there were photographs of the vehicle before the jury. There was some evidence about the capacity for crime scene investigator Trebilcock, who was 163 centimetres tall, to reach parts of the sports bar when standing on the ground. CSI Trebilcock gave evidence about the dimensions of the vehicle.
331․Professor Duflou’s evidence was that Ms Jordan suffered a “severe head injury as a result of falling backwards with an impact point of the back of the head”. He explained this kind of injury is referred to as a “contrecoup head injury” and can be caused by a fall “from one’s own height”. Professor Duflou characterised Ms Jordan’s head injury as an “accelerated” injury and said that a fall which was “accelerated” in some way could be expected to cause “more severe injury”. He explained that in a fall from “a good … height, you tend not to get contrecoup head injury. It appears to be that rotational movement backwards that is the important one.” The effect of his evidence was that acceleration could cause the “rotational movement backwards”. Professor Duflou said that a fall from a “moving” vehicle involved “additional forces” because the fall is “faster” and “probably at a high position that [sic] just standing… at ground level and when you add those together… you get greater forces. There’s greater acceleration, probably technically deceleration at the time of impact and you get more severe injury”.
332․Without objection the prosecutor then put several ‘scenarios’ to Professor Duflou which involved Ms Jordan falling from various points on the vehicle while it was moving “at some speed” and “at a reasonable speed”. It is in this context that Professor Duflou expressed the view that Ms Jordan’s injury was inconsistent with a fall from a vehicle that was moving only 1 or 2 kilometres per hour. Professor Duflou was then asked whether any one of the other scenarios which did involve acceleration were “more or less likely” to cause the injury such as the one Ms Jordan suffered. He responded, “I don’t know. In all cases you could certainly get that amount of injury”.
333․Despite the references in his evidence to height and speed as factors that could influence the nature and the extent of an injury, Professor Duflou was not asked to consider the probability of fatal injury by reference to the actual height of the bonnet of the appellant’s vehicle (which the evidence demonstrated was 97 centimetres from the ground) and the speed of the vehicle upon which the prosecution relied.
334․There was no other evidence adduced by the prosecution as to the factors which might influence the risk or severity of harm that might arise when a person falls from the bonnet or any other position on a vehicle while it is moving.
335․There being a probability, “high” or otherwise, of death in the circumstances was a matter to be proved on the evidence. A probability of death could not be said to be present on every occasion a person is present on the bonnet or elsewhere on the outside of a moving vehicle. The presence of slightly built Ms Jordon on the bonnet of the utility vehicle and the fact that it was moving did not evidence a probability or a “high” probability of death, nor the appellant’s advertence to it.
336․Fourthly, the conflict between the appellant and Ms Jordan was undoubtedly part of the circumstances in which the appellant drove the vehicle with Ms Jordan on the bonnet. But the appellant’s desire to leave the scene, having “inched” up, reversed down and driven back up Coutts Place, could not be conflated with a realisation that in driving with Ms Jordan on the bonnet, the result would probably be her death. The fact of the appellant’s frustration and anger at Ms Jordan’s attempt to thwart his departure was no substitute for the specific state of mind that the prosecution was required to establish.
337․It is important to recall that the appellant’s anger was described at different points of the conflict. The Director highlighted that Ms X said the appellant pushed Ms Jordan’s head into a bed and dragged her down the hallway. This conduct occurred, Ms X said, at around 2:00am when the appellant and Ms Jordan were arguing over the appellant’s shirt and the appellant “dragged her down the hallway, like, by, like him holding the shirt and her holding the shirt”. After this interaction the appellant left the residence and Ms Jordan and Ms X went to bed.
338․Ms X said that the appellant returned to the residence at 4:00am and the conflict between he and Ms Jordan recommenced and he attempted to again leave. Ms X said she told Ms Jordan to get off the vehicle and the appellant to “calm down”. In response the appellant got out of the vehicle and “went down the street”. Ms X said she followed the appellant because Ms Jordan told her to “chase him”. Ms X said she asked the appellant if he was going to just leave his vehicle and he responded “yeah”. Ms X said she “ran back up” and Ms Jordan “dived” in the window of the vehicle to find her vape. It was at this point Ms X said that the appellant dragged Ms Jordan out of the vehicle, got into it and began to drive while she and Ms Jodan were both on the bonnet.
339․The point to make is that the appellant’s anger and the conduct reflecting it, varied over the hours of the conflict. The conduct in pushing Ms Jordan on the bed and dragging her down the hallway as they each pulled on the same shirt occurred hours prior to the driving with her on the bonnet of his vehicle. On Ms X’s version immediately prior to getting into his vehicle the appellant had determined to leave the scene without it, until Ms Jordan instructed Ms X to chase after him. The interaction at 2:00am, after which the appellant departed, could not substantially inform his state of mind on the mental element necessary for the prosecution to establish when he drove the vehicle with Ms Jordan on the bonnet hours later.
340․It was one thing for the appellant to drive with Ms Jordan on the bonnet, angry at her conduct and her refusal to get off the bonnet, it was another thing for him to drive intending to dislodge her. Neither his anger nor that intention alone fulfilled the necessary mental element for murder based on reckless indifference. The “slow” (on Ms X’s version) inching up and then reversing back before stopping reflected some desire to provide opportunity for Ms Jordan to get off the bonnet. The acceleration back up Coutts Place and movement around the corner onto Alfred Hill Drive, given the speed the evidence revealed the vehicle achieved as it moved through the CCTV footage, was not a dramatic or aggressive escalation of the appellant’s driving, bearing in mind the evidence as to the speed the vehicle could have achieved over that distance. The Director submitted that the appellant’s anger culminated in his acceleration up Coutts Place and the only inference from that conduct was a realisation of the probable consequences and a preparedness to nonetheless “ignore the consequences in order to leave the area”.
341․The Director’s submission demonstrated the risk of substituting the appellant’s anger with the state of mind for murder in the circumstances of this case. The consequence of his intention to dislodge Ms Jordan from the vehicle was the same tragic consequence of knowing that her death would probably result if he continued to drive. Whilst the outcome of the conduct was the same, it was necessary to distinguish the appellant’s state of mind. A preparedness to “ignore” the consequence because of anger did not necessarily, or only, admit of a realisation of probable death. Consistent with that observation the prosecutor, in summarising for the jury the factors relied upon in support of reckless indifference, did not draw upon or even refer to the anger of the appellant. The appellant’s anger was invoked by the prosecutor in his closing address only as a factor relevant to proof of the appellant’s intention with respect to the alternative offence of manslaughter.
342․Fourthly, the appellant’s conduct in the immediate aftermath of Ms Jordan falling from the vehicle in my view was at odds with a state of mind where he had just engaged in an act, knowing that it would probably cause her death.
343․The expressions, tone and reaction of the appellant, captured in part by the CCTV footage, were not compatible with him having already realised that the probable result of his driving with Ms Jordan on the bonnet was her death. That the appellant immediately stopped the vehicle upon realising that Ms Jordan had fallen from it and attended to her, was difficult to reconcile with an actual realisation on his part, that as a result of his driving such an event would probably occur and a determination by him to go ahead nonetheless. The surprise that can be heard in the appellant’s tone and his immediate response, was contrary to him having just brought about the very outcome that he knew was probable.
344․Finally, the versions given by the appellant as I have already recorded did not exclude a hypothesis consistent with innocence: cf Baden-Clay at [56]. In rejecting the appellant’s version on the critical question of Ms Jordan’s presence on the bonnet, there remained a hypothesis consistent with innocence that had to be excluded. In my view, it was not. It was not a hypothesis that was fanciful, impossible or merely theoretical.
345․On the whole of the evidence that was accepted by the jury, in my opinion, the reasonable inference that when the appellant drove the vehicle with Ms Jordan on the bonnet, he did not know or realise that her death was probable, was not excluded. It follows that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt with respect to the offence of murder.
346․I would allow the appeal, set aside the verdict of guilty of murder and the sentence imposed by Baker J on 7 February 2024, order a verdict of not guilty of murder and reserve the question of whether another verdict should be entered.
| I certify that the preceding three hundred and forty-six [346] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal Associate: Date: 27 June 2025 |
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