R v BADCOCK - [2018] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BADCOCK
[2018] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
25 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - EVIDENCE - GENERALLY
Appeal against conviction.
Following a trial by jury, the appellant, together with two co-accused, was convicted of murder. At trial, the appellant did not admit his presence at the two locations where the assault of the victim took place nor any participation in the offending.
The case against each of the three accused at trial relied substantially on evidence given by two witnesses, C and R. The evidence of the two witnesses directly implicated the appellant as having been present at the two premises and involved in the assault of the victim. Both witnesses had been provided with immunity from prosecution in exchange for their truthful evidence and were treated by the trial judge as accomplices. The witnesses’ evidence as to the appellant’s presence and participation was not corroborated by any independent evidence.
The appellant relies upon the sole ground of appeal that the guilty verdict of the jury is unreasonable and cannot be supported having regard to the evidence. The appellant in particular identifies various features of the evidence of the two witnesses that he contends undermined the credibility and reliability of their evidence to the extent that a reasonable jury must have entertained doubt as to his guilt.
Held per Doyle J (Vanstone and Parker JJ agreeing), dismissing the appeal:
1.      The matters raised by the appellant as relevant to the credibility and reliability of the two witnesses’ evidence are neither individually nor cumulatively sufficient to render the verdict unreasonable or unable to be supported having regard to the evidence.
2.      The jury were entitled to accept the evidence of the two witnesses as credible and reliable as to the presence and participation of the appellant in the assault of the victim.
3.      In the context of the evidence as a whole, the evidence of the two witnesses was sufficient to entitle a reasonable jury to be satisfied of the appellant’s guilt beyond reasonable doubt.
M v The Queen (1994) 181 CLR 487, applied.
Jenkins v The Queen (2004) 79 ALJR 252; Kanaan v The Queen [2006] NSWCCA 109, considered.

R v BADCOCK
[2018] SASCFC 70
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ

VANSTONE: I would dismiss the appeal for the reasons given by Doyle J.
PARKER J: I would dismiss the appeal. I agree with the reasons of Doyle J.
DOYLE J: Following a trial by jury, the appellant, together with Kym Barnes and Shane Muckray, was convicted of the murder of Jayson Doelz.
The prosecution case against the appellant was that he was present and participated in a serious and sustained assault of Mr Doelz on 9 January 2012. The assault commenced at a premises in Pooraka, and culminated in fatal knife wounds being inflicted alongside a road in Kersbrook. The appellant’s case at trial was that he was not present at either the Pooraka residence or at the roadside location in Kersbrook.
Central to the prosecution case was the evidence of two witnesses, C and R. C lived at the Pooraka premises, and she gave evidence about an assault of Mr Doelz by the appellant and Mr Barnes at her home during the afternoon of 9 January 2012. Both C and R gave evidence that R arrived at the Pooraka residence with Mr Muckray after the assault had commenced, and that after a continuation of the assault, Mr Doelz was taken into the carport. After being struck in the face with a shovel, he was then put in the boot of R’s car. R’s evidence was that he then drove his car, with each of the appellant, Mr Barnes and Mr Muckray as passengers, and Mr Doelz in the boot, to a roadside location in Kersbrook. He said that at that location he remained in the car, but that Mr Doelz was subjected to a further assault by the other men who had been in his car, with Mr Doelz then left down an embankment alongside the road. Mr Doelz died in that location.
The trial judge directed the jury that C and R were accomplices, that there was no evidence that corroborated their evidence, and that it would thus be dangerous to convict based on their evidence. However, the jury was instructed that it was ultimately a matter for them to determine, on the evidence as a whole, whether the prosecution had proven the guilt of the accused.
In this appeal against conviction, the sole ground of appeal is that the guilty verdict is unreasonable and cannot be supported having regard to the evidence. In particular, the appellant identifies various features of the evidence of both C and R that he contends undermined the credibility and reliability of their evidence to the extent that a reasonable jury must have entertained doubt about the appellant’s guilt.
For the reasons which follow, the appeal should be dismissed. While there were some inconsistencies and discordances in the evidence of C and R, they were neither individually nor cumulatively sufficient to render the verdict unreasonable or unable to be supported having regard to the evidence. To the contrary, when the evidence of C and R is considered together, and in the context of the evidence as a whole, there was a strong case against the appellant. Not only was there a significant degree of consistency between the evidence of C and R, but there was also other evidence that was relevantly consistent with, and to some extent supportive of, the evidence of C and R. This included the evidence of a forensic pathologist that Mr Doelz’ wounds were consistent with a two-staged assault; the evidence of two independent witnesses (passing motorists) who saw aspects of the events that occurred roadside in Kersbrook; and the evidence of R’s then partner U, to the effect that she saw the three defendants and R together during the evening of 9 January 2012.
The prosecution case
On the morning of 11 January 2012, a man walking just outside Kersbrook in the Adelaide Hills came upon the body of Mr Doelz. His body was lying at the bottom of a ditch at the side of the road. His body was alongside a barbed wire fence beyond which were farming fields.
Mr Doelz had suffered a number of injuries, including eight stab wounds to his head and neck, and two stab wounds to the back of his thigh. He had suffered an injury to his brain and there were indications at post-mortem that he had been strangled. Bruising and abrasions were evident to his head, neck, back, arms and legs. It was clear that he had been subjected to an extended and brutal beating. The forensic pathology evidence not only confirmed these injuries, but also established that Mr Doelz died as a combination of an injury to his brain, aspirated blood in his lungs and a severed carotid artery.
The murder of Mr Doelz remained unsolved for some years until police identified two witnesses who knew something of the circumstances of his death. These witnesses were C and R. The case against each of the three accused at trial relied substantially on the evidence given by these two witnesses, each of whom witnessed different stages of the assaults against the deceased. Both witnesses were treated by the trial judge as accomplices, although C had been present only for the early stages of the assault and was not present at the scene of the final events at Kersbrook.
Mr Doelz was known to the three men charged with his murder through a common interest in methamphetamine. Although he had only been living in South Australia for a short time, Mr Doelz had come to know C as a dealer in methamphetamine. He also knew her mother, M, who also sold methamphetamine.
The appellant and Mr Barnes were friends with C, and Mr Muckray was her former boyfriend. The appellant also knew C’s then partner, D, who was in prison throughout the relevant period.
Given the issues raised on appeal, it is appropriate to summarise the key evidence in the prosecution case, being the evidence of C, R, the two motorists, U, M and Dr Langlois (forensic pathologist).
Evidence of C
C’s evidence was that she was a long-time user of methamphetamine, and that she was involved in the sale of the drug. She agreed that she was a user of methamphetamine in January 2012, and that she would have used it on 9 January 2012, albeit she could not recall the specific circumstances of her use on that day. She remained a user of methamphetamine at the date of the trial, having used as recently as five days prior to giving her evidence. She said that her mother, M, was also a user and dealer.
In December 2011, C moved into a rental premises at Royal Avenue, Pooraka. From New Year’s 2011 and continuing through January 2012 until some time after the events in question, the appellant was staying at the Pooraka premises.[1]
[1] In March 2012, during an unrelated investigation, police found an overnight bag containing male clothing, some jewellery and identification in the appellant’s name. C’s evidence was that this clothing belonged to the appellant and that he was still staying at her house in March 2012.
C gave evidence that about a week prior to 9 January 2012, Mr Doelz visited the Pooraka premises. Also present on this earlier occasion were the appellant, Mark Hocking, Ronnie Heggarty and possibly Mr Barnes and his girlfriend Terrilee Jordan.
On this earlier occasion, Mr Doelz was looking to buy methamphetamine from C. He had with him five or six pairs of sunglasses that he wanted to either sell for cash or swap for drugs. C was not interested in the sunglasses, but agreed to extend credit to Mr Doelz and supplied him with two points of methamphetamine. She did so with an expectation she would be repaid at some unspecified future time. The drugs were worth about $200.
While Mr Doelz was still at the premises, C feel asleep on the couch. She awoke to the sound of the appellant pacing around in her lounge room, and acting aggressively. He was holding a hammer and saying various things about Mr Doelz, including that Mr Doelz had been going through her things and was a “thieving cunt” and a “shit”. Mr Doelz assured C that he had just been looking for a missing pair of sunglasses. C told Mr Doelz not to worry about it, that he should leave, and that she would put the sunglasses aside if she found them. Mr Doelz then left.
The next time C saw Mr Doelz was 9 January 2012. The appellant and Mr Barnes were at the Pooraka premises drinking together, and Ms Jordan was also there. C was in her bedroom, but overheard the two men discussing Mr Doelz and the incident the week before in relation to the sunglasses. They were saying that they should “get him around” and “bash him, get him for it, coming into our female friend’s home and going through her shit”. They used words to describe Mr Doelz which included “thieving cunt, black dog and scumbag”. C at one point called out from her bedroom that they should “shut up … and let it go”.
While still in her bedroom, C heard someone arrive at her house. She assumed it was Mr Doelz. She overheard Mr Doelz greeting the men in a normal tone of voice, which soon changed to a tone of confusion. C came out into the lounge room. She saw the appellant punch Mr Doelz, and then, as Mr Doelz fell to the ground, elbow him to the temple, rendering him unconscious. As Mr Doelz lay on the ground, the appellant obtained a cord from the nearby TV cabinet and placed it around the front of Mr Doelz’ neck. He then pulled the cord from behind Mr Doelz as he lay face down on the floor, so that it was tight across his throat. The appellant “strangled” Mr Doelz in this way for a couple of seconds. Mr Doelz did not react and appeared to be unconscious. C tried to intervene by yelling at the appellant, and kicking and hitting him in the back a couple of times.
This attempted intervention had no effect, and the assault continued. By this stage both the appellant and Mr Barnes (although mainly the appellant) were “fighting” with Mr Doelz; they restrained Mr Doelz while punching him, hitting him and beating him up. They were calling Mr Doelz a “thief, low life” and saying other things such as “how dare you come into [our friend’s] home and go through [her] stuff”. Mr Doelz appeared to be unconscious through much of this, and did not regain consciousness until some time later. C continued to try and get them to stop, including by hitting them and yelling at them to stop.
At some point C returned to her bedroom. Mr Barnes came into her room and told her that Mr Doelz had hepatitis C. She went out to Mr Doelz, who was on the dining room floor. When questioned by C, Mr Doelz confirmed he had hepatitis C. He then took off his shirt and began wiping up his blood. C was “pissed off” and “quite disgusted” because his blood was “all over my house”.
By this stage Mr Doelz’ face was disfigured; he had “a lot of swelling, a lot of blood. He didn’t really look human”. Mr Doelz was pleading with C to let him go, saying that he had a little boy, that he wanted to go, and that he wouldn’t tell anyone what had happened. The appellant and Mr Barnes were not close by at the time, but were still wandering around the house and might have been in the hallway.
At some point C saw that Mr Doelz had his hands tied behind his back. While he was restrained, C rolled a cigarette for him and helped him to smoke it. When Mr Doelz asked for a glass of water, Mr Barnes filled a glass and put it to his face as though to help him drink, but then threw it into his face. C then got him a drink and helped him drink it.
The appellant and Mr Barnes were discussing using a compound bow that was in the house. Although the two men located the compound bow, they could not find the arrows for it. C said that she had hidden the arrows because she did not want them to use them on Mr Doelz.
At some point during the assault, C began to “lose her shit”. She described herself as becoming “psychotic”, although it became clear from her evidence that she did not mean that she experienced any break from reality. Rather, she meant that she was upset, angry, yelling and screaming. She recalled telling the two men to get out of her house and to stop their assault. The appellant asked her for the keys to a Jeep motor vehicle that was parked in her driveway. She refused, telling him that she was not prepared to become more involved than she already was, and that the pair would need to “find another way to leave”.
C then overheard a telephone call being made. She thought it was a call to her mother, because she overheard someone ask whether R was around as they needed him to come around and help with something. She knew that R was living at the same house as her mother. R and Mr Muckray subsequently arrived at the Pooraka premises. When they arrived, Mr Doelz was in the dining room, and his head was swollen and bruised. They appeared shocked by what they saw.
The vehicle that R had driven to the premises was positioned under the porch area, adjacent to the driveway and carport and behind a tarpaulin so as to shield it from sight. Mr Doelz was conscious at this stage and was “helped and dragged” outside through a side door. As he was moved through the doorway, Mr Doelz grabbed onto the doorframe and yelled for help. He was pushed through the doorway and fell onto C as he fell to the floor of the carport. She pushed him off because he was covered in blood.
Once he was in the carport, Mr Doelz was making a lot of noise. Someone (C was not able to identify who) struck him to the face with the flat face of a shovel, causing him to go quiet. Each of C, the appellant, Mr Barnes, Mr Muckray and R were in the carport with Mr Doelz. C was not sure where Ms Jordan was at this point.
In response to R complaining about getting blood in his car, a bucket of water was thrown over Mr Doelz as he lay unconscious on the ground. He was then lifted into the boot, and the boot was closed. The vehicle left the Pooraka premises with R driving, and Mr Barnes, the appellant, and Mr Muckray as passengers. Mr Doelz was in the boot.
At the direction of the appellant, C began to clean the blood from around the house. She also retrieved a hard drive which recorded images from cameras installed at the house and gave it to R.
C next saw the appellant and Mr Barnes at her house a few hours later. Neither said anything about what had happened to Mr Doelz.
In terms of the appearance of the three accused men on 9 January 2012, C said that the appellant did not have much hair at the time, describing it as shaved. He was the shortest of the accused, and had a stocky build. Both Mr Barnes and Mr Muckray also had shaved heads. They were both stocky, and taller than the appellant. Mr Muckray was the tallest of the three. C could not recall what they were wearing. As for R, C described him as having “dark shaggy” hair, probably taller than the three accused, but scrawny in build.
Evidence of R
At the time of the relevant events, R used methamphetamine and ecstasy. He had fallen under the influence of methamphetamine through his former employment as a chef, while working long and anti-social hours.
By 2012 he was a heavy user and associated with a circle of friends and associates who used and sold the drug. His regular dealer was M, C’s mother. R lived with his then partner U[2] and M at premises in Greenwith. R did not have any paid employment, but would do work for M, such as dropping off or picking up drugs and other things, or other “wheeling and dealing” for her. He “pretty much did whatever she wanted me to do”.
[2] They later married, although the marriage lasted only a few months.
In January 2012 R’s drug use had affected his physical appearance. Despite being six foot tall, he weighed only 68 kilograms. He wore his hair long and had a goatee beard. However, by the time he gave evidence at the 2017 trial, R had not used methamphetamine for five years and was employed full-time.
R had known C for a few months, having met her through her mother. He knew where she lived and had been there half a dozen times either running errands for M or dropping her off at that address.
R did not have any ongoing relationship with any of the three accused, describing Mr Muckray and Mr Barnes as “just acquaintances” and the appellant as simply someone he had met. As at January 2012 he had known Mr Muckray for about a month, having met him at the Greenwith premises where he was living at the time. He also knew Mr Barnes through M. He had met these men about half a dozen and a dozen occasions respectively prior to 9 January 2012. He had also met the appellant at C’s house.
R had only met Mr Doelz once, on an occasion when he picked up Mr Doelz (together with Mr Barnes and Mr Muckray) from Hungry Jacks in Golden Grove and took them to the Greenwith premises.
On 9 January 2012, R was in his room at the Greenwith premises when M called out to him. He had just woken up and had not used methamphetamine that day. M had been on her mobile phone. She told him that C was in trouble and needed assistance, and asked him to go to her place. She did not give him any further information.
R and Mr Muckray, who was also at the Greenwith premises, got in his car (a black Ford Falcon with a silver stripe) and drove to the Pooraka premises.

R parked out the front of the Pooraka premises, and he and Mr Muckray entered through the side door. Mr Doelz was sitting up against a dividing wall in the centre of the lounge and kitchen area. It was apparent he had been beaten; his face was swollen, bruised and battered. There was blood on Mr Doelz and in the area. The appellant and Mr Barnes were punching Mr Doelz and taunting him, calling him “a scumbag” and “a thief.” Mr Doelz was not responding, other than saying he was sorry and that he would not tell anyone.
Having entered the house, R was not sure what happened next; he had “a bit of a blank period through there”. At some point he moved his car into the driveway so that it was close to the carport and covered by the tarpaulin that hung across the carport. By this stage Mr Doelz was outside and sitting against a wall near the carport, although R was not sure how he got there. Present in the area near the carport were the appellant, Mr Barnes, Mr Muckray and C. Ms Jordan was present at the house, but was not in the area of the carport at this point.
The appellant, Mr Barnes and Mr Muckray were abusing and punching Mr Doelz, although it was more the appellant and Mr Barnes. C called Mr Doelz a scumbag a couple of times. She appeared angry at him, and may even have spat on him. But she did not hit him.
Mr Doelz was pleading saying that he was sorry and would not tell anyone. Mr Doelz then got hit across the left side of his head with a shovel. R did not see who hit Mr Doelz with the shovel. As a result of being struck he “shunted over a bit”, but was still in a sitting position. By this stage, Mr Doelz appeared to be slipping in and out of consciousness. R recalled someone (a female voice) saying something to the effect “get him out of here, get him home”.
R began putting a sheet on the back seat of his car to avoid blood getting on the seat. But someone (a male voice) said he was not going in the back seat; he was going in the boot. R saw Ms Jordan at that point. She and Mr Barnes were unloading the boot, and in particular disconnecting and removing a stereo speaker that was in the boot. Mr Doelz was still up against the wall in a semi-conscious state. R got in the driver’s seat and the appellant, Mr Barnes and Mr Muckray picked up Mr Doelz and put him in the boot.
R drove off with Mr Barnes in the front passenger seat, and the appellant and Mr Muckray in the back seat. The back seat of the car had been modified so that when the arm rest in the centre of the seat was down there was an opening through to the boot. The back seat was also split “60/40” so that the sections or whole of the back seat could be pulled down to access the boot.
R began heading towards Golden Grove. He did so because he assumed, from having previously picked Mr Doelz up from the Hungry Jacks in Golden Grove, that he lived in that area. At some point Mr Barnes began giving instructions where to go, which R followed. Mr Doelz made a few noises in the boot, which R described as screaming and sobbing. On one or two occasions the appellant or Mr Muckray opened the back seat and gave Mr Doelz “a couple of belts”, which led to him quietening down.
At some point while in the car, one of the men suggested they turn off their phones and take their batteries out. While he did not see what the others did, R took the batteries out of his mobile phone.[3]
[3] The telephone records of Mr Barnes and Mr Muckray were consistent with this evidence in that they recorded no inward or outward activity on their phones between 4.34 pm and 10.36 pm. There was no evidence in relation to any phone used by the appellant.
They stopped in a carpark so Mr Barnes could get out and go into a bottle shop. The others remained in the car. R was not aware of the time, but it was still daylight and the shops were open. He thought it was mid-afternoon. There were cars and people in the carpark where they had stopped. Mr Doelz was screaming “let me out”, and the appellant and Mr Muckray were abusing him and telling him to be quiet.
Mr Barnes returned from the bottle shop with a four pack of Jack Daniels. They were given one each, although R did not drink his. As they drove off and started drinking, they discussed that they were “in this together” and indeed had a “sort of toast sort of thing” to that effect.
Once again following the directions of Mr Barnes, R drove until they ended up on a dirt road. R was not sure where they were but they had been driving for about 25 minutes to half an hour when they reached the dirt road.
While driving along the dirt road, R noticed a light on the dashboard indicating that the boot was open. He hit the brakes, and the appellant and Mr Muckray jumped out and went to the rear of the car. The boot was open, and R saw Mr Doelz’ head appear, and saw the appellant or Mr Muckray give him a couple of belts or swings and then close the boot again. The car was stationary for about 40 seconds before the appellant and Mr Muckray got back in the car and R resumed driving.
At some point while driving on the dirt road, Mr Barnes found a knife in the centre console of the car. It belonged to R and he described it as more a ceremonial dagger than a knife. He claimed that he had been given it as a gift, and that it was in his car because he was in the process of moving his belongings to the Greenwith premises and into storage. Following the discovery of this knife by Mr Barnes, one of the men in the back seat said that he also had a knife, although R did not ever see this knife.
As they continued driving they returned to a bitumen surface. The boot light went off again, and R saw the boot starting to open. R braked and pulled off to the side of the road within a matter of seconds. Each of the appellant, Mr Barnes and Mr Muckray got out of the car and went to the boot, but R stayed in the driver’s seat. R saw a scuffle between the men at the boot and Mr Doelz, although all he saw was “lots of fast movement back there”. R was yelling to the men “Come on. Let’s go. Get in the car. Let’s go”, but they did not respond. Mr Doelz tried to run off to the side of the road. He went down an embankment into a ditch. The other three men followed, and once they were all down the embankment, all R could see from the side of the road were their heads and “overhead punches”. He described what he saw as “all three crowded around just throwing punches”. He estimated that the men were down there for about a minute and that the three men got back in the car.
While the other men were out of the car at this location, R noticed a white Land Cruiser drive past in the direction they had been headed. He did not notice any other car. At some point he also noticed that the knife was gone from the centre console. He did not ever see it again.
Once the three men were back in the car, R drove off, heading back in the direction from which they had come. R described the men as excited and gloating about what they had done, describing where they had “got him” and that he was “fucked”.
R estimated that by this time it was about 3.30 pm or 4.00 pm. It was still daylight, and about 10 to 15 minutes after they had first stopped to deal with the boot opening.
R drove the men back to the Greenwith premises where he was living. The appellant, Mr Barnes and Mr Muckray went inside the house. Neither his partner nor M were there at the time. It was about 5.00 pm by this stage. His partner, U, arrived home about two or three hours later, and M later that night.
R began cleaning his car, starting with the outside and then the inside. By the time U arrived home he was shampooing the seats. She helped him by vacuuming the car. Later that night he removed the liner from the boot and disposed of it in a dumpster at the nearby shops. Either that night or the next day he removed the stripes from his car and painted it.
While at the Greenwith premises, each of the appellant, Mr Barnes and Mr Muckray took steps to change their appearance by using clippers to shave their heads. That said, R acknowledged that all three had had short hair to begin with.
While he could not remember what the other three men were wearing that day, R did recall that (at his suggestion) they put their clothes in the spa bath at the Greenwith premises, and covered them with bleach or chlorine. He did not do this with his own clothes because he had not come into contact with Mr Doelz and so did not think it was necessary. At some point the three men left the Greenwith premises that night. They left their clothes, which were still in the spa bath. Later in the night, R placed the clothes in a bag and dumped them down a culvert in Two Wells.
In the three or four months following 9 January 2012, while still living in Greenwith, R visited C’s Pooraka premises half a dozen times or so. After that he had contact with her on a couple of additional times in a context related to his taking of drugs. He had not had any contact with her since 2012.
At some point he moved to Lameroo, and then in 2013 or 2014 he moved to Innamincka, where he worked as a chef in a hotel. He arranged for his car to be taken by truck to Innamincka. He told a friend of his in Innamincka that he needed to get rid of it to get away from a finance company to which he owed money. Upon R’s request, the friend used an excavator to push the car into a rubbish pit where it was then burnt and buried. R said he did this “just trying, you know, to cover things up I guess”.
Evidence of the two passing motorists
The prosecution led evidence from two motorists, Rodney Collins and Michelle Graves, who observed some of the events that occurred at the roadside location in Kersbrook.
Mr Collins’ evidence was that he lived in Kersbrook and regularly drove along the relevant stretch of road between Kersbrook and Williamstown. On 9 January 2012, at about 5.45 pm and when it was still light, he was driving his white Nissan Patrol along that stretch of road towards Williamstown.
As he came over a crest in the road he saw a black Ford Falcon with grey stripes that had stopped on the side of the road. The car had dark window tinting and mag wheels. To the left rear of the car he saw three men “going to task” on a fourth man on the ground. The man lying on the ground had his head pointed towards the road and his legs towards the side of the road. One of the men was on one knee, using his other knee on the chest of the man on the ground to pin him down while he was punching him. He saw that man deliver at least six punches to the face of the man on the ground. He thought he may have had a knuckle duster as the hand he was punching with seemed bulkier than a normal hand. The other two men were standing close together, a couple of feet from the others, with their backs facing Mr Collins and their hands in their pockets. The doors of the car were closed, but the boot was open. He did not see if anyone was inside the car.
Mr Collins was about 150 to 200 metres away when he first saw the car and the men. He was still in a 50 kph zone and was travelling at about 35 to 40 kph.
As he approached, he increased his speed slightly to about 50 kph as he was entering an 80 kph zone. He saw the two men who were standing shuffle together as if to shield from view what was going on. The man on the ground was struggling with his arms and legs, and trying to get up. When Mr Collins was about three or four car lengths away the man did get up and made a break over a bank that ran along the side of the road and into a ditch (which involved about a three or four foot drop). By the time Mr Collins was about equal with the car he saw the man struggling as if trying to get through the barbed wire fence that was on the other side of the ditch. The man had blood on his face. He was wearing jeans, but had a bare chest with what might have been a t-shirt wrapped around his left arm and hand.
Mr Collins saw the man who had been doing the punching go after him, over the bank and into the ditch. He saw the other two men move in the same direction, but not moving fast. At that moment he was distracted by another car that came up behind him, and so he did not see whether the other two men went over the bank.
He described the car behind him as a little white Nissan with pop-up headlights. He thought the driver was a male and was wearing glasses. This car was right behind him and so he began to slowly increase his speed from the approximately 50 kph he was doing.
When looking back through his rear view mirror he saw three men return to the black car. He saw one get into the passenger side of the car, through what he thought was the front door. He saw the other two get in the driver’s side. He could not say whether they got in the front or the rear, although he did see the rear door open. He thought the man who had been doing the punching was one of the men who got in the driver’s side of the car. The boot was closed but he did not see who closed it.
When Mr Collins was about 80 to 100 metres past the black car, with the white car between the two of them, he saw the black car pull out on the road in the same direction he was travelling. After a while Mr Collins turned off that road and the white and black cars continued along it.
Mr Collins was asked to describe the men he saw. He described the two men standing as he approached as being of different heights. One was tall (about 5 foot 11 or 6 foot) and slender, the other shorter (about 5 foot 10) and stockier and with a fair complexion. The man doing the punching appeared to be as tall as the taller of the other two, and had a slender and fit build. Mr Collins thought he was about his own height, and so about 6 feet tall. He had an olive complexion. All three men had black baseball caps on. He could not see their hair under their caps, although he said the man doing the punching had a little bit of black hair. But all three had short hair. He described their clothing. The man doing the punching had shorts, a plain black t-shirt and sneakers. The taller of the men standing was also wearing shorts and a black t-shirt. The shorter of the two had very bold checked shorts and a black t-shirt.
He thought the man on the ground was about 5 foot 9 or 10, with a slim build and in his twenties. He had a “normal” hair cut; a bit of length, but not much. He did not have any facial hair. He had an olive complexion.
Mr Collins made it home about 15 minutes later, in time to watch the 6.00 pm news. He drove the same road the following day but did not notice anything unusual. The next day he learned that a body had been found in the area and so he contacted the police to inform them of his observations. Much later he was asked to identify the men he saw from photographs shown to him by the police. He was not able to say whether any of the men in the photos were the men he saw.
Ms Graves’ evidence was that she lived near Kersbrook. On 9 January 2012 at about 5.45 pm she was travelling from Kersbrook towards Williamstown. She was the passenger in a white Ford Probe with pop-up headlights being driven by her partner.
She saw a black Ford with white stripes on the side of a road, facing towards Williamstown. She noticed that its boot and rear passenger-side door were open. She saw a man standing on the passenger side of the car, near the middle of the car. She could see his upper torso but the bottom of his body was shielded by the car. He was bending over and raising his arm, moving it up and down. She could not see what he was doing, but “being summer” she thought he was “killing a snake or something”.
Ms Graves saw two other men sitting in the back of the car, and someone sitting in the driver’s seat. She described the men in the back as “bigger built guys” because the car looked full. She thought they were wearing tank tops and looked muscular. The man in the driver’s seat was smaller and not as muscular. He was hunched over and holding the wheel, and was wearing a cap which was pulled down. As they drove by, she also noticed a white four wheel drive travelling in front of her. They were in an 80 kph zone but had to slow down because it was travelling at less than 80 kph. She estimated that they slowed to about 60 kph.
Ms Graves did not speak to the police about what she saw until 5 February 2012, when she became aware that the police were wanting to speak to the occupant of a car matching the description of hers.
Evidence of U
As at January 2012, U was the partner of R. Following these events, she married R, although the marriage lasted only a few months. They had been separated for a couple of years at the time of the trial.
U lived with R and M at the Greenwith premises. On 9 January 2012 she arrived home, having spent the day with her family. R was cleaning his car when she arrived.
When U went inside she saw the appellant, Mr Barnes and Mr Muckray sitting at the kitchen table together. Under cross-examination she maintained her recollection that they were all there, but conceded that the passage of time meant it was possible she was mistaken (saying “I guess so, given the time frame of how long it was”).
She had previously met each of these men on about half a dozen occasions, with each such occasion being at the Greenwith premises. On that night she observed that they had all shaved their heads, although she accepted during cross-examination that each of them already had short or shaved hair. She also gave evidence that R had shaved his head, although this was contradicted by some contemporaneous photos of him.
When she went to the bathroom she saw the spa bath was full of clothing, and that there was chemical (“like a bleach”) in the water that appeared to be turning the clothing white. Each of the men at the Greenwith premises were clothed, but she could not recall what they were wearing.
During that evening and the following day U assisted R to clean his car. There was no suggestion that she did so with any knowledge of the events of 9 January 2012. In the back seat area of the car (on the floor in particular) she noticed a “muddy type of dirt and grass”. She also noticed a small amount on the front floor of the passenger seat, but said there was no mud on the floor of the driver’s seat.
U only lived in the Greenwith premises for a few months, and had not had any contact with the three defendants since leaving those premises. She had met C about a dozen times, but had had no contact with her since leaving the Greenwith premises. She did not know Mr Doelz.
Evidence of M
M recalled receiving a telephone call at her Greenwith premises on 9 January 2012 from Mr Barnes, asking to speak to R. After speaking to Mr Barnes on the phone, R left with Mr Muckray.
She was not able to recall how long they were gone. But she did recall later that night R cleaning his car and doing something with the boot. She thought Mr Muckray was with him, but did not recall seeing Mr Barnes or the appellant at the house that night. Nor did she see anyone remove their clothes or put them in the spa bath.
Evidence of forensic pathologist
Dr Neil Langlois, a forensic pathologist, conducted a post mortem examination of Mr Doelz. He measured Mr Doelz at 168 cm tall and weighing 53 kilograms. He was a slightly built man.
Dr Langlois’ findings and opinions including the following:
·Bruising and fractures of the thyroid cartilage consistent with neck compression from something around 2 cm in width being pulled across the front of Mr Doelz’ neck. The presence of early inflammatory changes supported a conclusion that these injuries were sustained at least one to two hours prior to death.
·Swelling and bruising across Mr Doelz’ entire forehead and eyelids, extending down to his left cheek and left ear. The pattern was consistent with a blow to that area from a flat object (such as a shovel).
·Various blunt force injuries, including a laceration to the eye right eyebrow, bruising to the right eye, lacerations to the lower lip and tongue, a rib fracture and bruising to the back of the hand. Each showed evidence of an early inflammatory response, supporting the conclusion that they were inflicted a period of time prior to death.
·Other facial injuries typical of a fall, although also consistent with blunt force trauma.
·Damage to Mr Doelz’ brain arising from a jarring of the brain consistent with a fall or blunt force trauma. The head injuries may have interfered with Mr Doelz’ breathing or have caused it to stop altogether. There was axonal swelling usually associated with a period of loss of consciousness. While it was not possible to be precise, Dr Langlois’ opinion was that the axonal injury was incurred at least 35 minutes prior to death.
·Aspirated blood in the right lung, likely to have come from bleeding from a fractured nose, or the stab wound which severed the carotid artery and entered the pharynx. Dr Langlois’ opinion was that the aspiration probably occurred while Mr Doelz was lying on his right side (which is the position he was in when found in the roadside ditch). The aspirated blood would have impaired Mr Doelz’ breathing.
·Eight significant stab wounds to the head and neck, and two stab wounds to the back of the right thigh, just beneath the buttock. Based on the differing wound sizes, Dr Langlois’ opinion was that the wounds were inflicted with two different sized blades.
·One of the eight wounds had entered the neck and severed the carotid artery, terminating in the pharynx (the back of the throat). This wound would have caused rapid blood loss and could have killed Mr Doelz even in the absence of any of the other injuries. While it was not possible to be precise about the length of time Mr Doelz could have survived with that injury, Dr Langlois estimated it was between a very short time and up to an hour. However, none of the sharp force wounds showed any evidence of inflammatory response, suggesting they were inflicted close to the time of death.
·Dr Langlois’ opinion was that the cause of death was a combination of the stab wound to the neck and the blunt head trauma causing the injuries to the brain.
·When asked about the overall pattern of blunt and sharp force injuries, and the presence of inflammatory changes in some and not others, Dr Langlois’ opinion was that the pattern suggested an order of events – blunt force injuries (including the head injury), sharp force injury, then death. He was not able to be precise about the time frame between the groups of injuries inflicted.
The issues at trial

None of the three accused gave evidence at trial. However, it was evident from the conduct of the case that the appellant did not admit he was present at the Pooraka premises, in R’s car for the journey to Kersbrook, or for the roadside events that led to Mr Doelz’ death. The case for the other two accused was different. While accepting they were present, they did not admit the extent of the conduct and roles attributed to them by the prosecution. Indeed, their counsel not only sought to minimise their conduct and roles, but also to emphasise what they contended was the significant role played by the appellant.
The case against the appellant as to his presence at each of these locations, and his participation in the acts that killed Mr Doelz, depended upon the evidence of C and R. Both gave lengthy evidence, and were cross-examined by counsel for each of the accused. The jury thus had ample opportunity to see and hear these witnesses, and to assess their presentation and demeanour.
The trial judge gave a standard direction as to the assessment of witnesses, including a direction to the effect that they were entitled to find that a witness was truthful and reliable about some matters and not others. His Honour included a reference to the potential impact that heavy use of methamphetamines might have upon a witness’ perception and memory. He included specific reference to C and R in this context.
Both of these witnesses had been provided with immunities from prosecution in exchange for their truthful evidence. Letters from the DPP setting out the terms of their arrangements were received as exhibits at trial.
The trial judge directed the jury that C and R were to be treated as accomplices. He explained why C’s relatively limited involvement was sufficient to qualify her as an accomplice. He reminded the jury of the existence of the letters from the DPP which summarised the agreements they had made, and of the advantages granted to them in exchange for their agreement to give truthful evidence in the trial.
The trial judge then explained the significance of C’s and R’s status as accomplices. He explained that the experience of the courts had shown that evidence of accomplices can be unreliable. They often have an interest of their own to serve. They might wish to implicate others, either to shift some or all of the blame onto others, to shield another, or to gain favour with the authorities. The trial judge explained that evidence from a person involved in a crime came from a tainted source. He warned the jury that it would be dangerous to convict on the evidence of an accomplice unless that evidence was corroborated.
The trial judge explained that corroboration entailed evidence from a source that was independent from the witness to be corroborated, and which implicated the accused in the sense that it tended to show both that the crime was committed and that it was the accused who committed it. The trial judge then directed the jury that in this case there was no such corroborating evidence. He added that it was implicit in this case that one accomplice could not corroborate the evidence of another accomplice.
However, the trial judge also explained that the jury may nevertheless convict the accused if, after subjecting the accomplice’s evidence to close and careful scrutiny, and having given full consideration to the warning he had given, and to the whole of the evidence in the trial, they were satisfied beyond reasonable doubt as to the guilt of the accused.
Finally, the trial judge added that, in considering the evidence of C and R, it was relevant to have regard to other evidence that was consistent (or inconsistent) with their evidence, but that consistency was not the same as corroboration. His Honour explained that the warning he had given that it was dangerous to convict in the absence of corroborative evidence applied regardless of the consistency of their evidence with other evidence.
No complaint was made at the trial or upon the appeal about the trial judge’s directions in relation to the evidence of C or R.
Legal principles in relation to unreasonable verdicts
In determining whether a jury verdict is unreasonable or cannot be supported having regard to the evidence, the task of this Court is as stated by the High Court in M v The Queen.[4] The question is one of fact which the Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand. The Court must ask itself whether it thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[5]
[4] M v The Queen (1994) 181 CLR 487 at 492-495, as applied, for example, in Libke v The Queen (2007) 230 CLR 559, 597 at [113] and The Queen v Nguyen (2010) 242 CLR 491 at [33].
[5] Libke v The Queen (2007) 230 CLR 559 at 596-597.
The plurality in M v The Queen added:[6]
But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[6] M v The Queen (1994) 181 CLR 487 at 493-495 (citations omitted).
Application to the present case
If the jury accepted the evidence of C and R as generally credible and reliable, then it provided a sufficient basis for the conviction of the appellant of murder. On their evidence, he was present and participated in a significant and sustained assault of Mr Doelz that commenced at the Pooraka premises and continued at the roadside location in Kersbrook.
On the evidence of C, the assault at the Pooraka premises involved numerous instances of punching, an elbow to the head, strangulation with a cord and striking with a shovel. While C did not see who used the shovel, the appellant led the assault and was responsible for most of the punching, the elbow and the strangulation. R also witnessed Mr Doelz being punched and hit with a shovel at the Pooraka premises. While he also did not see who hit Mr Doelz with the shovel, his evidence was that the appellant was involved in the punching.
As to the continuation of the assault after they had left the Pooraka premises, R was not always able to distinguish between the conduct of the individual defendants. However, on R’s evidence, having joined in the discussion in his car that they were all in it together, the appellant was then present and involved throughout. The appellant and Mr Muckray were responsible for belting Mr Doelz while he was in the boot of the car; and all three defendants were involved in the roadside scuffle and in the final stages of the assault down the embankment. R said all three were delivering blows to Mr Doelz at this stage and were then involved in the gloating in the car immediately after this.
While the evidence from the post-mortem could not of course assist in determining the presence or role of any particular defendant, it did support the evidence of C and R as to the nature of the injuries inflicted, as well as suggesting the infliction of knife wounds.
If satisfied as to the credibility and reliability of the above evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant participated in the assault that caused Mr Doelz’ death either (i) with an intention at the time the fatal wound or wounds were inflicted to kill Mr Doelz or cause him grievous bodily harm, (ii) being party to a plan to assault Mr Doelz with an intention to kill him or cause him grievous bodily harm, or (iii) being party to a plan to unlawfully assault Mr Doelz foreseeing that one of the participants in that plan might act with an intention to kill Mr Doelz or cause him grievous bodily harm. Satisfaction beyond reasonable doubt as to any of these three alternatives would have warranted a verdict of guilt of murder.
The issue in this case was thus not the sufficiency of the evidence, but rather the credibility and reliability of the evidence of C and R. In this respect it is significant that a doubt about some particular aspect or aspects of the evidence of one or other of these witnesses need not have required doubt about the appellant’s guilt. Consistent with the trial judge’s directions the jury might not have been satisfied beyond reasonable doubt as to some aspects of these witnesses’ evidence (for example, C’s evidence as to the sunglasses incidents, or her attempts to assist Mr Doelz during the assault) but nevertheless have been satisfied beyond reasonable doubt as to the truthfulness and reliability of the critical aspects of that evidence (namely as to the presence and participation of the appellant in both stages of the assault).
In contending that a reasonable jury must have entertained a doubt about the appellant’s guilt, the appellant relied upon various features of the evidence of C and R. It is convenient to address these individually before returning to their cumulative significance in the context of the evidence as a whole.
The status of C and R as accomplices
It was of course relevant to an assessment of the evidence of C and R that they were treated by the trial judge as accomplices, and that their evidence was uncorroborated.
The potential unreliability of accomplice evidence, and the reasons for it, are well known. In Jenkins v The Queen,[7] the High Court said the following of the rule requiring a warning to the jury about the danger of convicting upon the uncorroborated evidence of an accomplice:[8]
The rule exists for a reason. That reason is related to the potential unreliability of accomplices, an unreliability thought to be so well known in the experience of courts that judges are required, not merely to point it out to jurors, but to tell them that it would be dangerous to convict upon the evidence of an accomplice unless it is corroborated. The principal source of unreliability, although it may be compounded by the circumstances of a particular case, is what is regarded as the natural tendency of an accomplice to minimise the accomplice’s role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity. The warning to the jury is for the protection of the accused. The theory is that fairness of the trial process requires it. It is a warning that is to be related to evidence upon which the jury may convict the accused. The reference to danger is to be accompanied by reference to the need to look for corroboration. The hypothesis is that the evidence in question is in contest, and that it inculpates the accused.
[7] Jenkins v The Queen (2004) 79 ALJR 252.
[8] Jenkins v The Queen (2004) 79 ALJR 252 at [30].
The potential for unreliability is particularly acute in circumstances, such as the present case, where the accomplice has obtained an immunity from prosecution (or some other advantage) on account of their co-operation with the authorities and agreement to give evidence. As was explained in Kanaan v The Queen:[9]
The first and second bases on which such evidence may be unreliable are unrelated to any indemnity or undertaking given to the witness. The first basis applies to any witness involved in criminal activity — either the same criminal activity as the accused or other criminal activity. That involvement is directly relevant to the credit of such a witness, and its relevance to that issue would ordinarily be a matter of which jurors will be aware.
The second basis on which the evidence may be unreliable is where the witness was involved in the same criminal activity as the accused. For convenience, we assume in this and the next paragraph that the witness is a male. There is a motive for such a witness to construct a false version of the events in order to justify his own behaviour or to shift the blame from himself to others, by downplaying his own role and by either playing up the role of the accused or by blaming an innocent party (such as the accused) for the crime which was committed. In such a case, having given that false version to the police in order to extricate himself from criminal responsibility or to lessen the extent of his own responsibility, the witness has effectively locked himself into that version, and may feel bound, as a matter of self-respect, to repeat that false version when he gives evidence. The evidence of such a witness, moreover, is likely to have a seeming plausibility because of his detailed knowledge of the circumstances in which the crime was committed, and this plausibility may add undeserved weight to what he says about the part played by the accused.
The third basis on which the evidence may be unreliable is directly relevant to the indemnity or undertaking given to the witness. It is a matter less likely to be within the general experience and understanding of jurors than the last basis. The consequence of such an indemnity or undertaking is that, in return for giving evidence, the witness obtains the benefit or advantage of evading a prosecution in relation to his own criminal activity. The nature of that benefit to the witness, the consequence to the witness if he does not adhere to the (induced) statement he gave to the police, and the effect which such a consequence may have on the truthfulness of the evidence given by the witness are not matters within the general experience and understanding of jurors and thus will ordinarily require mention in the warning given: Regina v Stewart at [38], [98], applying Bromley v The Queen (1986) 161 CLR 315 at 323-324 (Brennan J) and following Regina v Baartman [2000] NSWCCA 298 at [62]. Not only may the witness feel bound, as a matter of self-respect, to repeat the false version given to the police when he gives evidence, he will necessarily feel bound to do so, as a matter of self-protection, in order to avoid prosecution for his own criminal activity.
[9] Kanaan v The Queen [2006] NSWCCA 109 at [164]-[166].
I observe in passing that the law is not entirely settled as to whether or not the evidence of one accomplice may corroborate the evidence of another. It may be capable of doing so in a case where there is no risk of joint concoction between the accomplices.[10] However, I do not consider it necessary to dwell on that issue. I am content to approach the matter on the basis the trial judge did, namely that there was no evidence capable of corroborating the evidence of C or R. This approach was, if anything, favourable to the accused.
[10] Director of Public Prosecutions v Kilbourne [1973] AC 729 at 751, and Pollitt v The Queen (1992) 174 CLR 558 at 600 (per Dawson and Gaudron JJ), suggesting this possibility. On the other hand, the inability of the evidence of one accomplice to corroborate the other was said in R v Glastonbury (2012) 115 SASR 37 at [92] to have become a rule accorded "the rigidity of a rule of law” by Bray CJ in R v Rigney (1975) 12 SASR 30 at 36.
In undertaking the independent assessment of the evidence required of this Court, it is appropriate and necessary to take account of the potential unreliability arising from the status of each of C and R as accomplices, and as persons who had obtained immunities from prosecution in return for their undertakings to give truthful evidence. The absence of any legally corroborative evidence rendered it dangerous to convict on the basis of their evidence alone.
However, it does not follow that the verdict of guilty was unreasonable or unable to be supported by the evidence. While it is necessary to ensure that the evidence of C and R is subjected to close and careful scrutiny, when considered in the context of the evidence as a whole it might nevertheless be found to be reliable, and indeed sufficient to sustain a conclusion of guilt beyond reasonable doubt. In this respect, the respondent emphasises several aspects of the evidence said to be consistent with, and in some respects supportive of, the evidence of C and R.
First, there is the consistency between their evidence as to certain matters. While C and R were known to each other, and have had some contact with each other since 9 January 2012, there was nothing in the evidence that suggested that their evidence was the product of any collusion between them.
Prior to January 2012, C and R had spent time together while taking drugs. However, according to C, they were not close and did not have any ongoing relationship. There was some evidence of telephone conversations between C and R in late January 2012, but there was no evidence as to the content of these conversations. C also lived at her mother’s house in Greenwith for a period in 2012 while R was still living there. However, on the evidence of both C and R, they had not had any contact for about five years since 2012. It was not put to either C or R that they had jointly concocted a false version of events during these conversations or while they lived in the same house in 2012, or indeed on any other occasion.
There was police evidence to the effect that telephone intercepts were placed on C’s telephone service between 23 May 2016 and 9 June 2016, and R’s telephone service between 23 May 2016 and 10 June 2016. This period of time was significant because it included the time during which the police had their initial contact with each in relation to their knowledge of relevant events. Despite C and R using their telephones in this period, there were no calls between the two of them.
Given the absence of any basis for concluding that C and R colluded, and despite acceptance that their evidence was not legally corroborative of each other’s evidence, the jury was nevertheless entitled to have regard to the extent of the consistency (as well as any inconsistencies) between their respective versions of events.
The inconsistencies relied upon by the appellant are considered below. However, insofar as their periods of observations overlap, it is significant that their evidence was generally consistent.

R’s observations of Mr Doelz’ injuries, and the persons present, when he arrived at the Pooraka premises were consistent with C’s description of the beating that had occurred prior to his arrival. They both gave consistent accounts of Mr Doelz then being taken out to the carport area, being hit with a shovel, and being placed in the boot of R’s car.
As well as this mutual consistency, the evidence of each of C and R was also consistent in some respects with other independent evidence.
R’s evidence of the events that occurred on the side of the road in Kersbrook was consistent with, and to some extent supported by, the evidence of the independent passers-by, Mr Collins and Ms Graves.
Of particular significance in this regard was Mr Collins’ evidence that he saw a man being assaulted at the rear of a car parked on the side of a road with its boot open; that there were four men at the rear of the car, including the man being assaulted; and that the man being assaulted then escaped over the embankment before being chased over that embankment. While Mr Collins only saw one of the three other men follow the man over the embankment, he did see the other two move in that direction before he lost sight of them. Mr Collins’ evidence that each of the men out of the car had hair that was of similar length and did not show much under the caps they all wore, and that he did not notice that any had facial hair, was significant given the other evidence that the three accused all had shortish hair, whereas R had long hair (that would likely have been visible under a baseball cap) and a goatee beard.
While Ms Grave only saw one person outside the car, her evidence about a man slumping in the driver’s seat was consistent with that person being R.
U’s evidence also provided some support for aspects of the version given by R; namely, as to the presence of the three accused at the Greenwith premises that evening, the attempts to bleach their clothing, and her observations of the car while cleaning it being consistent with the driver having remained in the car during the final stage of the assault.
Finally, it is significant that the versions of C and R were consistent with, and in several respects supported by, the evidence of the forensic pathologist, Dr Langlois. His evidence supported a pattern of injuries that was consistent with the evidence of these witnesses, namely, a two-staged assault involving earlier incurred blunt force injuries followed later by sharp force injuries. The nature and extent of the blunt force injuries were consistent with the beating of Mr Doelz described by C. There was evidence of a neck compression injury consistent with the period of strangulation with a cord that she observed. There were also facial injuries consistent with the evidence of both C and R that Mr Doelz was struck with a shovel. The existence of stab wounds from two different blades was also consistent with R’s evidence as to the knife taken from the console of his car and the reference by one of the men in the back seat to him also having a knife.
The credibility and reliability of C’s evidence
The appellant contends that C’s credibility and reliability was undermined in several respects.
The sunglasses incident
It will be recalled that C gave evidence of an incident a week before 9 January 2012, which involved the appellant being aggressive towards Mr Doelz, and calling him a thief and a scumbag for going through C’s belongings, with the appellant even brandishing a hammer in an aggressive manner towards Mr Doelz.
In her evidence, C said that Mr Barnes and the appellant were discussing this incident prior to Mr Doelz arriving at her Pooraka premises on 9 January 2012. The appellant contends that this was an implausible attempt by C to provide a reason for animosity on the part of Mr Barnes and the appellant towards Mr Doelz, and ultimately a motive for their attack.
As mentioned, C’s evidence was that others were present on the day of the sunglasses incident, including Mr Hocking and Ms Haggerty; although she did not make it entirely clear that they witnessed the aggression towards Mr Doelz. Neither Mr Hocking nor Ms Haggerty gave evidence at trial. However, the prosecution led evidence to explain their absence. That evidence was to the effect that Mr Hocking could not be located despite extensive efforts, and that Ms Haggerty had refused to provide a statement.
The incident does seem a relatively minor matter in the scheme of things, and a somewhat unlikely motive for the significant assault of Mr Doelz that followed. But the jury were entitled to consider that in the world of people heavily dependent on methamphetamine, matters can take on a significance that they might not otherwise warrant.
In support of the contended implausibility of C’s evidence, the appellant contended that if the sunglasses incident had occurred as described by C, it is unlikely that Mr Doelz would have returned to the Pooraka premises without some assurances as to his safety. In this respect, the appellant emphasised the evidence of C that he and Mr Barnes were stocky in build, whereas the deceased was a lightly built man. If not lured to the Pooraka premises in some way, the appellant contends that it would have been an extraordinary coincidence that he arrived there only moments after (on C’s evidence) Mr Barnes and the appellant had been discussing getting him around to give him a beating.
According to the appellant, the only likely scenario consistent with C’s evidence would be if Mr Doelz had been lured to the Pooraka premises that day. In this respect, the appellant contends that it is significant that there was no evidence of this occurring. In particular, while there was no evidence in relation to any telephone service being used by the appellant, the phone records of Mr Barnes and Mr Doelz from the relevant time period did not indicate any contact consistent with this having occurred.
Against this, the respondent contends that there was some (albeit limited) evidence of at least a change of plans on the part of Mr Doelz for the afternoon of 9 January 2012. The respondent also makes the trite observation that the absence of evidence does not establish a negative, pointing to the possibility of contact, including indirectly, by means other than the telephones of Mr Barnes and Mr Doelz – albeit without being able to point to any particular scenario which had any support in the evidence.
It is true that the evidence does not reveal how or why Mr Doelz came to attend the Pooraka premises on 9 January 2012. It is also true that C’s evidence about the sunglasses incident as a reason for animosity was somewhat curious, and left as speculation how it was that Mr Doelz was, or might have been, lured to the Pooraka premises. However, none of this of itself required rejection of C’s evidence as to the sunglasses incident or conversations about luring Mr Doelz to the Pooraka premises, let alone her evidence as to the assault on Mr Doelz and the appellant’s participation in that assault. They were all matters that fell to be considered by the jury in light of the evidence as a whole.
C’s attitude to Mr Doelz
The appellant points to the various occasions in C’s evidence on which she described herself acting in a way that demonstrated a sympathetic attitude to Mr Doelz. The appellant refers in particular to her evidence that she told the appellant and Mr Barnes to leave Mr Doelz alone when they were discussing luring him around and assaulting him; that she pleaded with them to stop assaulting him; that she struck the appellant in an attempt to have him cease the assault; that she was traumatised by the appearance of the deceased and scared by the assault; that she rolled a cigarette for Mr Doelz and helped him smoke it; that she poured a glass of water for him and helped him drink it; and that she hid the arrows from the compound bow that the appellant and Mr Barnes were discussing using on Mr Doelz.
The appellant contends that this evidence not only bore the hallmarks of self-serving and unreliable evidence, but was also directly inconsistent with the evidence of R. While R did not mention any of the above demonstrations of C’s sympathetic attitude in his evidence, it must be remembered that on his evidence, and that of C, he was not present at the Pooraka premises when most, if not all of them, occurred. Nevertheless, the appellant contends that the sympathetic attitude on the part of C suggested by her evidence was inconsistent with R’s evidence that C joined in the verbal assault of Mr Doelz in the carport, and indeed may have spat on him.
There is something of a tension in the evidence as to C’s attitude towards Mr Doelz. On the other hand, the matter is not as stark or significant as the appellant contends. First, I have already mentioned that R was not present for the particular displays of sympathy or compassion described by C and so the tension, such as it is, exists at a more general level. Secondly, even on C’s evidence, her attitude was not entirely sympathetic. In particular, she described herself as “losing her shit” during the course of the assault, and accepted that she was upset, angry, yelling and screaming. Thirdly, the verbal abuse was said to have occurred at a moment when Mr Doelz was being helped or dragged through a doorway and fell onto her. By this stage, Mr Doelz was covered in blood. Given her evidence that she was “pissed off” and “disgusted” to learn that he had hepatitis C, this might have explained her abuse of Mr Doelz at this point.
Again, this matter falls in the category of matters that were relevant to an assessment of the credibility and reliability of the evidence of C (and R), but did not of itself require doubt about her evidence as to relevant matters.
Other inconsistencies between the evidence of C and R
The appellant relied upon other inconsistencies between the evidence of C and R as reflecting upon the credibility or reliability of their evidence.
One difference related to C’s evidence that soon after R arrived, and at her request, they left the Pooraka premises together and he drove her to the Red Rooster. She said that she asked R to take her there because she was scared, and paranoid that it might look suspicious if he simply reversed his car into the driveway after all the commotion that had occurred in the house. She estimated that they were gone for about 15 minutes. R did not make any mention of going to the Red Rooster, or indeed of leaving the premises for any purpose prior to Mr Doelz being placed in the boot of his car. While this inconsistency between their evidence is curious, the respondent notes that R’s evidence was to the effect that he had “a bit of a blank period” in his memory as to the events upon his arrival at the Pooraka premises.
There were other differences or inconsistencies between the evidence of C and R. For example, they gave differing descriptions of the direction in which R’s car was pointing once it had been moved into the driveway of the Pooraka premises. R also denied that he took any hard drive with CCTV footage from C’s home.
In my view, these matters, and indeed the other differences between the evidence of C and R, are inconsistencies or discordances that one might ordinarily expect in the case of two witnesses recounting events some five years after they occurred. While relevant in an assessment of the evidence of both witnesses, they are not of a nature or significance that required doubt as to the evidence of either in relation to critical matters. Indeed, on one view, these difference between their evidence tended to negate any suggestion of joint concoction between them.
C’s telephone conversations with her partner
The evidence revealed that C received two telephone calls from her partner, D, during the afternoon of 9 January 2012. The calls were made through the prison telephone system and were made at 3.14 pm and 4.02 pm respectively. Each lasted for the full 10 minute period permitted by the prison. At least the second of these calls occurred during a time when it was likely that the assault of Mr Doelz had commenced, but prior to R (and others) having left the premises with Mr Doelz in the boot of his car.
A recording of these conversations was received in evidence at trial. The appellant contends that they are remarkable for the lack of any indication of the drama that, on C’s evidence, was unfolding in either the topics discussed, the tone of her voice, or the background noise. The recordings are aptly described as evidencing the idle conversation that one might expect of a conversation between a young couple in a relationship. There was no mention of an assault, and no discernable sign of distress, fear or any other emotion in C’s voice of the kind that one might expect in light of her description of the events and their impact upon her. Nor was there any background noise such as men shouting angrily or dogs barking (which C said occurred throughout the incident).
By way of partial explanation for this, C’s evidence was that she was aware that calls from the prison were potentially monitored or recorded. She said that to get some privacy, she went to a room at the very end of the house (albeit that it was a modest sized house) to speak to D, and that in addition to shutting the door, she spoke with a quilt over her head to “muffle” the sound. She did not want D to hear, or be concerned about, what was going on.
Again, while the content and tone of the recording is somewhat surprising given the circumstances, the significance of the recording to the credibility and reliability of C’s evidence in relation to critical matters was for the jury to assess. It did not require doubt as to her evidence about these matters.
C’s telephone records
C’s telephone records suggest that she made over 30 telephone calls during the course of 9 January 2012, including five calls between 2.08 pm and 4.34 pm on 9 January 2012 (being a period which the evidence suggested overlapped with the assault at her premises). These five calls included calls to her mother, Mr Barnes and Mr Barnes’ mother.
The appellant contends that C’s inability to recall the content of any of these conversations is implausible and reflected poorly on her credit and reliability.
On the other hand, as the respondent points out, most of these calls were very short in length and may have been a record of no more than failed attempts to contact the relevant person, or messages left on their voicemail services. As C suggested, a number of them may have been related to attempts by her to purchase drugs from her dealer.
While a handful of the calls appear to have occurred at a critical time, and may well have been relevant to an understanding of what occurred, it was ultimately a matter for the jury what to make of these calls, and C’s inability to recall them. The jury were entitled to attach little weight to C’s inability to recall them given their limited length and the time that had passed when she gave evidence about them.
C’s demeanor as a witness
The appellant contends that, to the extent that the above matters were merely matters for the jury to resolve having regard to their advantage of having seen and heard C’s demeanor and performance as a witness, this was not an answer in the circumstances of this case. It was not an answer, the appellant contends, because C performed poorly as a witness. He contends that this was apparent from reading C’s evidence, but was also confirmed by the prosecutor’s acknowledgement during the course of her closing address that C was “absolutely evasive at some times during her evidence. She was vague sometimes. Sometimes she was uncooperative”.
The respondent contends in response to this that the prosecution submission mentioned was directed primarily to the stage in C’s evidence when she expressed her dissatisfaction with having to give evidence, and a break was required before she was able to compose herself and resume giving her evidence. The respondent contended that the jury were best placed to assess the reason or reasons for this episode. They were entitled to form the view that she was a reluctant witness for reasons that did not necessarily reflect upon her credibility or reliability.
On my reading of C’s evidence, there was nothing in particular discernable from the transcript to suggest that the jury had other than their usual advantage. I do not accept that her evidence was so obviously given in a manner indicative of it being untruthful or unreliable that there is no need to have regard to the possibility of the jury resolving any inconsistencies or discordances in favour of her nevertheless being credible and reliable – at least in relation to the key aspects of her evidence so far as the appellant is concerned.
The credibility and reliability of R’s evidence
In challenging the credibility and reliability of R’s evidence, the appellant relied upon his status as an accomplice and the inconsistencies with C’s evidence mentioned earlier in these reasons.
There was an additional inconsistency raised in this context. It was C’s evidence that in the days following 9 January 2012, R bragged and joked about his involvement in the murder of Mr Doelz. R denied any bragging about this on his part, and doubted that he would have joked about the matter.
The appellant accepted that there was no obvious basis for criticising R’s demeanor or performance as a witness. However, the appellant contends that the lies that R admitted telling about the fate of his car, and the manner in which he told them, ought to have caused the jury to doubt his credibility and reliability.
R accepted that he lied to various members of his family and other friends and strangers about his car when he was in the course of disposing of it. This included making up a version of events involving his car being stolen from outside the Lameroo Hotel after he had left his keys on one of its wheels. More significantly, he also lied to the police about his car when interviewed without notice in May 2016. After receiving legal advice, he declined to answer any questions in relation to the murder of Mr Doelz. Despite this, he was asked a question about his car. Rather than tell the lie involving the Lameroo Hotel that he had previously told others, he told the police that he did not know where the car was and that he had not seen it recently. Two days later, he reverted to the Lameroo version which he told the police. A further four days later he admitted to the police that the Lameroo version was also a lie, and that he had arranged for the car to be destroyed at Innamincka.
It was put to R that the lie he told the police was delivered confidently and without hesitation. When he denied this, the footage was played to the jury. The appellant submits that it is apparent from the video recording that he did lie confidently and without hesitation. The appellant contends that R presented as a convincing and admitted liar, and that his justification for perpetuating the lie about the car, namely to protect the reputation of Innamincka and its inhabitants, was implausible given that his admitted reason for destroying the car was to cover his tracks.
It is true that the lies told by R do not reflect well on his credit. However, I do not consider that they required doubt about the critical aspects of his evidence, and in particular his evidence as to the appellant’s presence and participation in the assaults upon Mr Doelz. As the respondent pointed out, the lies were not told in court or on oath. When giving evidence, he admitted telling the above lies. The lies were confined to the condition and whereabouts of his car. While it is likely that his reason for lying was to prevent his implication in the relevant events, and hence reflected a consciousness of his own guilty involvement, that does not necessarily mean that, once his involvement was exposed, his version thereafter was necessarily untruthful or unreliable. In these circumstances, I consider that the characterisation and significance of R’s lies were matters for the jury.

In this respect, and by way of contrast with the evidence of C, it was significant that R’s evidence was not entirely self-serving. While not attributing himself with a significant role at the Pooraka premises, and maintaining that he did not leave the car at the roadside location, R not only accepted his presence and general involvement, but also accepted, for example, that it was his idea to bleach the clothing and that he was responsible for disposing of that clothing and the liner from the boot of his car.
Conclusion
For the reasons given, I do not accept that any of the matters raised by the appellant were of a nature or significance that required the jury to entertain doubt as to the evidence of C or R in relation to the appellant’s presence and involvement. They are not of a nature or significance that causes me to experience a doubt about these matters, particularly a doubt that was not capable of being resolved by the jury’s advantage of having seen and heard C and R give evidence, and having seen and heard that evidence in the context of the evidence at trial as a whole. In my view, that is so not only when these matters are considered individually, but also when their cumulative effect is considered.
In reaching this view, I have borne in mind their status as accomplices whose evidence was not corroborated by any independent evidence, and hence the danger inherent in relying upon their evidence to convict. However, the jury were entitled to have regard to the broad consistency between their respective versions of events (insofar as they overlapped); the support gained for their accounts of the nature and timing of the two-staged assault of Mr Doelz from the evidence of Dr Langlois; the support for R’s description of the events that occurred by the side of the road in Kersbrook from the evidence of the two passing motorists (and in particular Mr Collins); and the support for the presence of the three accused together with R on the evening of 9 January 2012 (and R’s evidence that he stayed in the car) from the evidence of U.
Having considered the evidence of each of C and R in this broader context, the members of the jury were entitled to accept their versions of events as credible and reliable as to the presence and participation of the appellant. They were entitled to be satisfied beyond reasonable doubt on the basis of this evidence, together with the other evidence in the case, that the appellant was present and participated with the requisite intention or foresight.
It was not necessary for the jury to have accepted every aspect of C’s evidence to have been satisfied beyond reasonable doubt of the appellant’s presence and participation in the assault with the requisite intention or foresight. The jury were entitled to be satisfied beyond reasonable doubt of these matters while at the same time having doubts about whether C had to some extent downplayed her role, or was otherwise unreliable as to some matters of detail, for instance, arising out of the inconsistencies between the evidence of C and R. Indeed, the jury might well have been satisfied of the appellant’s presence and participation with the requisite intention or foresight based exclusively upon the evidence of R.
I have borne in mind that there was no evidence, other than that of C and R that directly implicated the appellant in the sense of placing him at the Pooraka premises or the road side location, let alone identifying him as a participant in the assaults of Mr Doelz at either of those locations. To the extent that there was any evidence (other than that of C or R) in relation to the appellant, it was limited to the evidence of U that he was present with R, and the other accused at the Greenwith premises on the evening of 9 January 2012, and the more general evidence that the appellant was staying at the Pooraka premises at the relevant time (or at least had subsequently left a bag of his possessions there). Mr Collins saw four people outside the car at the roadside location, although his description of those individuals was very general. While consistent with the appellant in terms of having short hair and no apparent facial hair, and in terms of one man being shorter and stockier than the others who were standing outside the car, his description was capable of describing a significant proportion of the male population. Further, Mr Collins was not able to identify the appellant (or any of the other accused men) during an attempted photograph identification conducted some time later.
Be that as it may, the broad support for the other aspects of the versions of C and R in the evidence as a whole was, in my view, sufficient to entitle the jury to conclude that their evidence was generally credible and reliable, and that this extended to their evidence as to the appellant’s presence and involvement.
It follows that the evidence of C and R, in the context of the evidence as a whole, was sufficient to entitle a reasonable jury to conclude beyond reasonable doubt that the appellant was present and participated in the assault of Mr Doelz with the requisite intention or foresight. Put another way, the matters raised by the appellant on this appeal are not sufficient either individually or cumulatively to warrant a conclusion that a reasonable jury must have entertained doubt as to these matters.
For these reasons, I would dismiss the appeal.