R v Bucca; R v Castle - [2018] SASCFC 42

Supreme Court of South Australia
(Court of Criminal Appeal)
R v BUCCA; R v CASTLE
[2018] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Auxiliary Justice Rice)
31 May 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CREDIBILITY - RE-EXAMINATION OR EVIDENCE TO RESTORE CREDIT
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellants were convicted of murder following a trial by jury. This was their second trial for the charge of murder after an appeal against their convictions was allowed.
On the prosecution case, the deceased was fatally shot by Mr Bucca on 3 February 2013. The deceased was the former partner of Ms Castle, who by then was in a relationship with Mr Bucca. Through a series of text messages, Ms Castle lured the deceased to her car at a car wash at Parafield. It was known to Ms Castle that Mr Bucca was concealed in the rear of the car and that he might use a gun to kill the deceased. The deceased entered the car and sat in the passenger’s seat. Shortly after, the deceased attempted to alight from the passenger’s seat. Three shots were fired at the deceased, the last of which was fatal.
At trial the prosecution case against Ms Castle was dependent on her having formed a plan with Mr Bucca, and on Mr Bucca being the shooter. The defence case was that the Mr Bucca was not present and that another person was in the car with Ms Castle and fatally shot the deceased. The trial judge directed the jury they could not convict Ms Castle unless they found Mr Bucca guilty of murder.
The daughter of a friend of Mr Bucca gave evidence to the effect that Mr Bucca had previously shown her father guns while she was present. To rebut an inference of recent invention arising in her cross-examination, the trial judge permitted the prosecution to re-examine her with reference to a statement she gave to police before the first trial.
The appellants appeal the convictions to this Court.
Held (by the Court): appeal dismissed.
1. Properly understood, the direction that the jury could not convict Ms Castle unless they found Mr Bucca guilty of murder did not present a risk that the jury might wrongly convict Mr Bucca in order to convict Ms Castle (at [77]-[78], [81], [106]-[107], [110]).
2. The inference that Ms Pascoe had engaged in recent invention was available to the jury and the judge was correct to permit the re-examination as to the fact of and timing of the earlier police statement (at [143], [146]-[147]).
3. The directions concerning Ms Pascoe’s evidence sufficiently explained to the jury the correct manner by which it had to assess the credibility and reliability of her evidence. There was no risk arising from the judge’s directions that the jury would reason improperly (at [170], [173]-[174]).
4. No error or miscarriage of justice resulted from the judge’s directions on the topic of extended joint criminal enterprise concerning the basis upon which Ms Castle could be found guilty of murder. Plainly the jury was being asked to consider whether it was in Ms Castle’s contemplation that Mr MacDonald would be shot by Mr Bucca (at [181]-[186]).
5. No error or miscarriage of justice resulted from the judge’s directions about the possibility of a verdict that Ms Castle was guilty of manslaughter (at [193]-[195]).
6. Consideration of the whole of the evidence does not require the conclusion that the jury must have had a reasonable doubt about Ms Castle’s guilt (at [207], [219]-[221]).
Criminal Law (Consolidation) Act 1935 (SA) s 353; Criminal Appeal Act 1912 (NSW) s 6(1), referred to.
R v Franco (2003) 139 A Crim R 228; Castle v The Queen (2016) 259 CLR 449; R v Schlaefer (1984) 37 SASR 207; M v The Queen (1994) 181 CLR 487, applied.
Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; James v The Queen (2014) 253 CLR 475; R v Zappia (2002) 84 SASR 206, distinguished.
R v Suppiah [2018] SASCFC 11; The Nominal Defendant v Clements (1960) 104 CLR 476; R v Martin (No 2) (1997) 68 SASR 419; R v Georgiev (2001) 119 A Crim R 363; R v Heinze (2005) 153 A Crim R 380, discussed.

R v BUCCA; R v CASTLE
[2018] SASCFC 42
Court of Criminal Appeal: Stanley and Nicholson JJ and Rice AJ
THE COURT:
Introduction

These are applications for permission to appeal against conviction. The applications for permission to appeal were referred to the Court of Criminal Appeal by a Judge of this Court.
The applicants were convicted of the murder of Adrian MacDonald following a trial by jury. This was the applicants’ second trial for the charge of murder. The applicants were re-tried after an appeal against their convictions was allowed.
Circumstances of the murder
Mr McDonald was shot at 6.36 a.m. on 3 February 2013 at the “Big Bucket Car Wash” (car wash) in Parafield. CCTV footage recorded Mr MacDonald getting into the front passenger seat of a motor vehicle driven by the second applicant, Ms Castle. Ms Castle was formerly in a de facto relationship with Mr MacDonald. Shortly after entering the vehicle, Mr MacDonald attempted to alight from the front passenger’s seat. A shot was fired. Two more shots were fired in quick succession. The third shot was fatal.
The motor vehicle belonged to Ms Castle’s mother and it was not in issue that Ms Castle was driving it at the time of the shooting.
The re-trial
The prosecution case was that Ms Castle lured Mr MacDonald to the car wash on the pretext of renewing their sexual relationship and the first applicant, Mr Bucca, was lying in wait in the boot of the car armed with a handgun. The prosecution contended that Mr Bucca had crawled through to the interior cabin of the vehicle by folding down a back seat and then shot Mr MacDonald. Ms Castle’s liability for the murder was put to the jury on alternative bases: first, she was a party to a joint criminal enterprise with Mr Bucca to kill or inflict grievous bodily harm or, second, she was a party with Mr Bucca to a joint criminal enterprise to assault and detain Mr MacDonald and she foresaw that, in carrying out that scheme, Mr Bucca might shoot him with murderous intent.
At the re-trial Mr Bucca gave evidence. His defence was simple. He denied being in the vehicle when Mr McDonald was shot, and denied being the shooter.
Ms Castle did not give evidence at the re-trial, but had given evidence at the earlier trial. The transcript of her evidence from the earlier trial was admitted into evidence at the trial and was read to the jury over several days.[1] That evidence was to the effect that another man, Wesley Gange, and not Mr Bucca, was in the vehicle and that it was he, Mr Gange, who had shot Mr MacDonald. Ms Castle’s evidence was that she did not know that Mr Gange was in possession of a gun, and that she had not intended to harm Mr MacDonald.
[1] Exhibit P43.
Mr Gange died before the first trial.
Ms Castle’s defence was two-fold. First, that she did not know Mr Gange had a gun before he shot Mr MacDonald and that there was no agreement with Mr Gange to shoot Mr MacDonald, nor had she contemplated that this might occur. Second, in the alternative, if the jury found Mr Bucca was the shooter, the prosecution had not proved that she knew Mr Bucca had a loaded gun before a shot was fired; or that she was party to a joint enterprise with Mr Bucca to murder Mr MacDonald; or that she contemplated that Mr Bucca might murder him by shooting him with a gun.
Apart from Ms Castle and the shooter, there were no witnesses to the murder. CCTV footage demonstrated that the vehicle was at the car wash, and it was established that the car belonged to Ms Castle’s mother. Ms Castle’s admissions in her evidence placed her in the vehicle at the time when Mr MacDonald was shot. The CCTV footage shows Mr MacDonald arrive at the car wash shortly after Ms Castle.
It was the prosecution’s case that Ms Castle’s relationship with Mr MacDonald had ended shortly before these events, and she had commenced a sexual relationship with Mr Bucca. Mr Bucca and Mr Gange were associates operating in the milieu of illicit drugs and each entertained hostile feelings towards Mr MacDonald arising from the belief that he had broken into premises in which they had been living and stolen some of their belongings. It was not in dispute that, a matter of hours before the shooting, Mr Bucca and Mr Gange, in company with each other, were looking for Mr MacDonald.
The prosecution case against each applicant was largely circumstantial. The central issue at the trial was whether the prosecution had excluded as a reasonable possibility that Mr Gange or someone else was the shooter. In the event that it had, a further issue in Ms Castle’s case was the capacity of the evidence to prove her agreement to the intentional killing or infliction of grievous bodily harm on Mr MacDonald or, at the least, her contemplation that Mr Bucca might do so in carrying out an agreement to assault and detain him. The prosecution case against Ms Castle, in either of the ways it was put to the jury, depended upon proof that she knew Mr Bucca was armed with a handgun.
Tamara Pascoe, who was the daughter of an associate of Mr MacDonald, gave evidence that some months prior to the shooting she was present when Mr Bucca showed her father three handguns in black plastic cases, opening the cases one at a time. One of the guns had an attachment and Mr Bucca demonstrated how it screwed into the barrel of that gun. In cross-examination she was challenged on the basis that her evidence was fabricated and the incident had not occurred. Specifically it was put to her that at the earlier trial she had said the handguns had not been removed from their plastic cases. During re-examination the trial Judge on the re-trial permitted prosecuting counsel to adduce evidence from her of a statement she had made to police on 7 November 2014, before the first trial, where she referred to Mr Bucca taking one handgun out of its case and showing how the attachment worked. The Judge subsequently gave directions to the jury as to how they could use this evidence.
In a similar vein, Mr Gange’s partner, M, gave evidence that about two to three weeks before the shooting Mr Bucca had shown Mr Gange and her a handgun.
Evidence was put to the jury of telecommunications data, which showed the probable location of the mobile telephones known to be used by each applicant and Mr Gange. A mobile telephone which was known to be used by Mr Gange was not in the vicinity of the car wash at the time of Mr McDonald’s murder. At that time, the telephone was in a location which was consistent with it being in the premises at which Mr Gange was staying. Those premises were more than 12 kilometres from the car wash. However, proof that Mr Gange was not at the car wash depended upon more than evidence that his telephone was not at the scene of the murder. Proof that Mr Gange was not present at the scene depended upon inferences from the probable location of the telephone and his known movements in the hours before and after the murder. The latter depended on the evidence of M that Mr Gange was at home with her at the time of the murder. We will return to this.
In order to understand the basis of the prosecution case, it is necessary to refer to particular aspects of the evidence placed before the jury.
The breakup of the relationship between Ms Castle and Mr MacDonald was acrimonious. It had occurred a matter of one or two months prior to the murder. It was not initiated by him. Mr MacDonald was upset about the breakdown of the relationship. He moved into premises at Cadell Court, Hope Valley. Those premises were occupied by a friend of his, Mr Bristow. Ms Castle moved to her mother’s home in Elizabeth Park. Some time after that had occurred, Mr MacDonald learned that Ms Castle was in a sexual relationship with Mr Bucca. That was no later than 26 January 2013.
In 2012, Mr Bucca and Mr Gange lived at premises in Sapphire Crescent, Highbury. That lease expired in early 2013 and they were in the process of moving out of those premises at around the time of the shooting. On 31 January 2013, the Sapphire Crescent premises were the subject of a break in and a fridge, laptop, boxing bag and weights were stolen. Shortly before this occurred, Ms Castle had seen Mr MacDonald driving a car which was towing a trailer, in the vicinity of Sapphire Crescent. She reported this to Mr Bucca. There was evidence that Mr Bucca and Mr Gange each believed Mr MacDonald was responsible for the break in. There was evidence that, as a result, they harboured feelings of hostility towards him in the 48-hour period immediately prior to the murder.
By early February 2013 and before the shooting, Mr Gange and M had been staying at premises in Gosfield Crescent, Hampstead Gardens, which were occupied by Matthew Grace and his partner, Tammy, and her children.
There was evidence that Mr Bucca, Ms Castle, Mr Gange and M were regular users of ice.
Mr Gange was angry and volatile, particularly when on ice. He was familiar with handguns. He had traded handguns for drugs, although the evidence did not establish whether this had taken place before or after the murder. In 2009, Mr Gange suffered severe burns in an accident. As a result, his right arm was fused at the elbow at an angle of 90 degrees. There was evidence that, on some days, his pain restricted his mobility and, on other days, it did not.
M gave evidence of a conversation between Ms Castle and Mr Bucca on the evening of Saturday, 2 February 2013 at Gosfield Crescent. The conversation occurred in the presence of her and Mr Gange. Mr Bucca described Mr MacDonald as a “dog”. Ms Castle mentioned arranging a babysitter so that she and Mr Bucca could meet Mr MacDonald. M gave evidence that Ms Castle was intending to mislead Mr MacDonald into believing she wished to resume their relationship and, unknown to Mr MacDonald, Mr Bucca was going to be there. M gave evidence that Mr Gange left the Gosfield Crescent premises some time between midnight and 2.00 a.m. on 3 February 2013, and returned between 5.30 and 6.00 a.m. She could not remember the exact time. She gave evidence that Mr Gange remained with her at Gosfield Crescent until about 8 a.m. or 9 a.m.
The credibility and reliability of M’s evidence was put in issue. She acknowledged she had been drinking and was intoxicated “to a certain degree” on the evening of 2 February 2013. She may have consumed drugs. She accepted that she may have gone to sleep, but insisted that when Mr Gange returned it was becoming daylight. She acknowledged that she had previously suggested that the children were getting ready for school at this time, but she was mistaken in that regard as it was a Sunday.
The evidence of the telecommunications records contained data relating to the mobile telephones used by Mr Bucca, Ms Castle, Mr Gange, M and Mr MacDonald in the period between 7 January and 3 February 2013. The evidence included the content of text messages, the duration of telephone calls, the identity of the assumed recipient of the call and the telephone tower through which the caller’s signal was relayed. The Klemzig, Greenacres and Hampstead Gardens telephone towers are roughly equidistant from the Gosfield Crescent premises, at which Mr Gange and M were staying, and calls made from those premises would be expected to be relayed by one of those towers. Mobile telephone calls made from the Cadell Court premises, at which Mr MacDonald was staying, were likely to be relayed through the Hope Valley, Hope Valley East or Hope Valley Reservoir towers. The Sapphire Crescent premises, from which Mr Gange and Mr Bucca were moving out, is close to Cadell Court and calls made from the Sapphire Crescent premises were also likely to be relayed through one of those towers. Mobile telephone calls made from the car wash were likely to be relayed through the Modbury, Para Vista South or Para Hills West towers.
The prosecution sought to prove that, on the morning of 3 February 2013, the telephone known to be used by Mr Gange (“Gange telephone”) was at a location consistent with being at the Gosfield Crescent premises at 2.42 a.m. At this time, a message was transmitted to that telephone from Mr Bucca’s telephone reading, “[s]weet c u soon bro”. At 3.30 a.m., a call made on the Gange telephone was relayed through the Hope Valley East tower. This was consistent with that telephone having moved to the vicinity of the Cadell Court premises. At 3.33 a.m., a call from Mr Bucca’s telephone was relayed through the Hope Valley tower, which was consistent with that telephone being in the vicinity of the Cadell Court premises. The presence of Mr Bucca and Mr Gange in the Cadell Court premises was recorded by CCTV at 3.50 a.m. The two men were seen leaving the premises at 4.50 a.m. At 5.05 a.m. on 3 February 2013, the Gange telephone was still relaying calls through the Hope Valley tower. By 5.14 a.m., the Gange telephone was relaying calls through the Klemzig tower. This was consistent with that telephone having been taken from the Cadell Court premises to the Gosfield Crescent premises. Between that time and 8.10 a.m., the Gange telephone relayed calls through the Klemzig, Greenacres and Hampstead Gardens towers, consistent with it being located at the Gosfield Crescent premises.
M gave evidence that she and Mr Gange had gone to the Cadell Court premises some time after 8.00 a.m. on Sunday, 3 February 2013. Consistent with that account, at 8.47 a.m. a call from the Gange telephone was relayed through the Hope Valley Reservoir tower.
Calls made from Ms Castle’s telephone between 5.21 a.m. and 6.00 a.m. on 3 February 2013 were relayed through towers which were consistent with the prosecution case that she was in the vicinity of the car wash. Calls made by Mr Bucca’s telephone at 5.34 a.m. and at 5.49 a.m. were relayed through towers which were consistent with the prosecution case that he was with her at those times.
CCTV footage recorded at the car wash showed the vehicle driven by Ms Castle parked in a bay at 6.20 a.m. Ms Castle alighted from it on three occasions. Twice, she moved to the boot area of the vehicle. On at least one occasion she opened the boot. At 6.24 a.m., Mr Bucca’s telephone was conntecting with the Para Hills West tower, which was consistent with Mr Bucca’s telephone being at the car wash.
At 6.30 a.m., Mr MacDonald’s vehicle arrived at the car wash. At 6.32 a.m., Mr MacDonald sent Ms Castle a text reading, “I’m next to you”. Ms Castle replied by text, “Im not getting out [of] the car its cold”. At 6.33 a.m., a call was made from the Gange telephone to Mr McDonald’s telephone. CCTV footage showed Mr McDonald’s telephone light up but he did not answer the call. This was significant on the prosecution case because at this time, according to Ms Castle, Mr Gange was sitting in her car, had been seen by Mr MacDonald and had exchanged greetings. This account makes no sense. There was no reason for Mr Gange to telephone Mr MacDonald at that time. He was only metres from Mr MacDonald and aware of his presence.
At 6.34 a.m., a call was made from the Gange telephone to Ms Castle’s phone. The call was relayed through the Klemzig tower, consistent with the Gange telephone being at the Gosfield Crescent premises.

Mr MacDonald walked to the front of the vehicle occupied by Ms Castle and looked through the window. At 6.36 a.m., he got into the front passenger’s side of the car. He was in the car for 30 seconds before it drove off, stopped and the three shots were fired.
At 6.40 a.m., a telephone call was made from Ms Castle’s telephone to the mobile phone of F, a friend of Mr MacDonald, who Ms Castle knew had been with him when the arrangement was made the previous night for Ms Castle and Mr MacDonald to meet. At 6.44 a.m., a text message was sent from Ms Castle’s telephone to Mr MacDonald’s telephone reading, “[H]ad to leave the kids got up I wil call you later on n [sic] we can meet up to talk”.
It was the prosecution case that the patterns of calls and probable location of the telephones was cogent support for its case that Mr Bucca was with Ms Castle at the car wash and Mr Gange was at home in Gosfield Crescent. The prosecution contended that Ms Castle’s text message to Mr MacDonald that said she was not getting out of the car because it was too cold was a device to have him get into her vehicle, given she had demonstrated she was not reluctant to get out of the car before he arrived at the car wash. It suggested her trips to the boot were to check on Mr Bucca. Other evidence pointed to Mr MacDonald being wary of an encounter with either Mr Bucca or Mr Gange. His conduct in examining the interior of the car driven by Ms Castle before getting into it was said to be consistent with the shooter being concealed in the boot. This was relevant to Ms Castle’s evidence at the first trial that Mr Gange was sitting inside the cabin of the car, either in the front passenger’s seat or in the back seat. The prosecution alleged that the 6.44 a.m. text message sent from Ms Castle’s telephone was an evident attempt to establish an alibi. On any view, at 6.44 a.m. Ms Castle well knew that Mr MacDonald had been shot.
Ms Castle’s evidence at the first trial was that, on the evening of 2 February 2013, Mr Gange had asked her to contact Mr MacDonald and to assist him in recovering his property. She denied that Mr Bucca or anyone else had referred to Mr MacDonald as a “dog” or that she had said anything to suggest that she was going to arrange a meeting with him on the pretext of resuming their sexual relationship. She arranged to meet Mr MacDonald to sort out their furniture, which included arranging for him to collect a lounge and other belongings from her mother’s house. She had borrowed her mother’s car to collect the last of Mr Bucca’s belongings from the Sapphire Crescent house, as her own car was already full. She arrived at Sapphire Crescent some time before 4.37 a.m. She sat waiting for just over half an hour until Mr Bucca and Mr Gange turned up. The three went inside and collected Mr Bucca’s belongings and put them in the boot of her mother’s car. While loading the vehicle, she told Mr Bucca and Mr Gange about her arrangement to meet Mr MacDonald. She had spoken to Mr MacDonald shortly after 6.00 a.m. and arranged to meet him at the car wash. She did not ask either Mr Bucca or Mr Gange to accompany her. Ms Castle said that Mr Gange had wanted to come with her because he wanted to get back his computer, fridge and the other things that he believed Mr MacDonald had taken.
Ms Castle gave evidence that she drove to the car wash with Mr Gange in the front passenger’s seat. She alighted from the car and opened the boot to look for cigarettes. When Mr MacDonald arrived, Mr Gange climbed over the centre console into the back seat and Mr MacDonald got into the front passenger’s seat. The three of them started talking and Mr Gange brought up the subject of the break in. Mr MacDonald denied any part in it. Mr Gange got angry and started yelling. Ms Castle said that she was going to drive to a nearby service station to buy some cigarettes. As the car started to move, Mr MacDonald went to open the door. She slammed on the brakes and the first shot was fired. Mr MacDonald was partly out of the door at the time. Then two more shots were fired. She looked over her shoulder and saw a gun in Mr Gange’s hand. She yelled at him that they needed to call an ambulance and she went to pick up her telephone. She said Mr Gange took the telephone from her, pointed the gun at her and told her to drive. He sent the text message to Mr MacDonald’s telephone.
Ms Castle’s evidence at the first trial was that she had not known that Mr Gange had a gun until the first shot was fired. She had not intended any harm to Mr MacDonald. She said that her mobile telephone was with her at all times. She gave evidence that Mr Bucca’s mobile telephone was also in the car. Initially, she said that Mr Bucca had left it there. Later, she gave evidence that Mr Bucca had not been inside the car and that she had picked up her own and Mr Bucca’s telephones before driving to the car wash. She had no explanation for calls from these telephones being relayed through towers that suggested both telephones were in the vicinity of the car wash at the time when she said that she and Mr Bucca were at the Sapphire Crescent premises.
At the retrial, Mr Bucca gave evidence that he came to know Mr MacDonald and Ms Castle through the drug scene. In mid-2012, he moved into Mr Bristow’s residence. Late that year, Mr McDonald and Ms Castle also moved into those premises. At Christmas he went to Darwin. When he returned in January, he stayed at Mr Gange’s house. He became aware that the relationship between Mr MacDonald and Ms Castle was breaking up. He believed that his relationship with Mr MacDonald soured because Mr MacDonald thought he had some involvement with Ms Castle. Mr Bucca gave evidence that, in fact, he did not commence a sexual relationship with Ms Castle until about a week before the shooting. He gave evidence about discovering the break in on 31 January 2013 and his belief that Mr MacDonald was responsible. He became angry with him and began chasing him for $1,000 he owed him. He gave evidence that Mr Gange reacted angrily to the break in.
Mr Bucca gave evidence that, on the afternoon on 2 February 2013, he, Ms Castle, Mr Gange and M were at Sapphire Crescent. They were taking drugs. They discussed Mr MacDonald and the break in. Both he and Mr Gange wanted to confront Mr MacDonald and to retrieve the goods he had stolen. He agreed that he called Mr MacDonald a “dog”. He denied there was any discussion between Ms Castle and him about setting up Mr MacDonald or misleading him into believing that he and Ms Castle could resume their relationship, or that he intended to be present at some meeting between Ms Castle and Mr MacDonald.
Mr Bucca gave evidence that he was aware that Ms Castle had been in communication with Mr MacDonald by telephone about getting his furniture from her parents’ house. He said he did not make any attempt to find out from Ms Castle what was happening about her attempts to meet Mr MacDonald. Nonetheless, he believed that Mr MacDonald knew he was wanting to speak with him. He gave evidence that, at some stage, Mr Gange and M left Sapphire Crescent. He remained a while with Ms Castle before she also left.
He gave evidence that, later that night, Mr Gange picked him up and they went to look for Mr MacDonald for the purpose of confronting him about the stolen property. They were unable to find him and returned to Sapphire Crescent. Ms Castle’s vehicle was parked in the driveway. He and Ms Castle started to pack his belongings which were going to be taken to Ms Castle’s parents’ house. Following this, Mr Gange left the house. At the same time, he and Ms Castle also left the house. They went to an On The Run to get smokes and drinks. He could not recall which one. He thought this was shortly after 5 a.m., and the trip took 15 to 20 minutes. They returned to Sapphire Crescent, by which time Mr Gange had also returned. Mr Bucca said Mr Gange gave him a bag of ice. He had a vague memory of Mr Gange using Mr Bucca’s telephone. He speculated that Mr Gange was trying to find his own telephone.
Mr Bucca gave evidence that at some point he became aware that Ms Castle was communicating with Mr MacDonald. He was unaware of the content of the communication. He said that at some point he and Ms Castle were about to leave, so he entered her mother’s car but Ms Castle was on the telephone to Mr MacDonald. He said there was some argument, so he alighted from the car and went back into the house, but left his telephone in the vehicle. When he re‑entered the house, Mr Gange was on the lawn near the front of the house. Once he was in the house, he heard the vehicle start and drive off. Mr Bucca said he stayed and waited at Sapphire Crescent. He gave evidence that, about an hour later, Mr Gange returned to Sapphire Crescent. He came into his house, went straight into his bedroom and left again after maybe 20 to 30 seconds. He did not say anything. Mr Bucca described Mr Gange as appearing angry, frustrated and concerned. He said that, about 15 minutes later, Ms Castle arrived at Sapphire Crescent. She beeped the horn and he went outside. He described himself as being angry, but he said Ms Castle did not want to talk about where she had been or what she had been doing and they left. They then drove to her parents’ house. On the way, they made a short stop at the house of a Mr and Mrs Townley.
Mr Bucca gave evidence that, once they arrived at Ms Castle’s parents’ house, they each had a shower and ate some food. He said he washed his clothes. He said he spent the day with Ms Castle until she was arrested mid-afternoon.
The prosecution case against Mr Bucca
The prosecution case relied upon various strands of evidence to prove that the shooter was Mr Bucca and to exclude the possibility that it was Mr Gange or, for that matter, anyone else. They were:
1.the telephone records showing that Mr Bucca’s and Ms Castle’s mobile telephones were circling the car wash early on the morning of 3 February 2013 and were in the vehicle driven by Ms Castle at the time of the shooting;
2.the evidence of motive;
3.M’s evidence of the plan that Mr Bucca and Ms Castle hatched to lure Mr MacDonald to a confrontation with Mr Bucca;
4.Ms Castle’s text messages to Mr MacDonald in apparent execution of that plan;
5.the telephone records and M’s evidence which tended to place Mr Gange at the Gosfield Crescent premises at the time of the shooting and exclude the possibility of him being in the car with Ms Castle as she described;
6.the difficulty that a man with Mr Gange’s injuries would have in hiding in the boot of the Ford and moving from that position into the back seat of the car;
7.DNA evidence consistent with Mr Bucca’s DNA and therefore with Mr Bucca at some time having been in the boot of the vehicle driven by Ms Castle to the car wash; and
8.evidence that Mr Bucca had access to handguns in the months prior to the murder.
The prosecution case against Ms Castle
The prosecution relied upon various strands of evidence to prove that Ms Castle was a party to an agreement with Mr Bucca to kill or inflict grievous bodily harm on Mr McDonald or detain him at gunpoint and confront him about the break in, and that she foresaw the possibility that, in carrying out this latter agreement, Mr Bucca might kill or inflict grievous bodily harm with murderous intent. They were:
1.the evidence which proved Mr Bucca was the shooter;
2.the inference that Ms Castle either saw the gun or was told of it during the period she and Mr Bucca were together before arriving at the car wash, or once there, in light of her movements towards the boot of the car while waiting for Mr MacDonald;
3.her refusal to meet Mr MacDonald outside her car; and
4.the telephone call made by Ms Castle after the shooting and the text sent to Mr MacDonald’s telephone.
For the purposes of this appeal, it is an important aspect of the conduct of the trial that it was the prosecution case that the jury could not find Ms Castle guilty of murder or manslaughter unless it was satisfied that Mr Bucca was guilty of murder. The Judge directed the jury accordingly.
Mr Bucca’s grounds of appeal
Mr Bucca seeks permission to appeal on the following grounds:
1.the trial Judge erred in law in directing the jury that in order to find Ms Castle guilty of murder or manslaughter they had to find Mr Bucca guilty of murder;
2.the Judge erred in law by admitting the evidence of Ms Pascoe, given in re‑examination, of an out-of-Court statement she gave to police; and
3.the Judge erred in law by failing to direct the jury that they could only use Ms Pascoe’s evidence to rebut any suggestion made in cross‑examination of recent invention, and erred in directing the jury that they could use that evidence in assessing her credibility and reliability as a witness.
Ms Castle’s grounds of appeal
Ms Castle appeals on the following grounds:
1.the Judge erred in law and/or a miscarriage of justice was caused by his directions to the jury concerning the basis on which Ms Castle could be found guilty of murder in accordance with the doctrine of extended joint enterprise. In particular, the Judge erred in directing the jury that the contemplation required of Ms Castle was that Mr Bucca might in fact use a weapon to murder Mr McDonald, without identifying how Ms Castle was required to contemplate the weapon being used, and the Judge erred by failing to direct the jury that Ms Castle could only be guilty of murder if, before Mr Bucca fired the first shot, she knew that he had possession of a loaded gun;
2.the Judge erred in law and/or a miscarriage of justice was caused by his directions to the jury about the possibility of a verdict of manslaughter for Ms Castle;
3.the Judge erred in law by admitting evidence from Ms Pascoe in re-examination in relation to the statement she gave to the police on 7 November 2014; and
4.in the alternative, if that evidence was properly admitted the trial Judge erred in law by failing to direct the jury correctly about the use they could make of that evidence.
Ms Castle also seeks permission to appeal on a fifth ground that the jury’s verdict that Ms Castle was guilty of murder is unreasonable and cannot be supported having regard to the evidence.
It can be seen that grounds two and three of Mr Bucca’s grounds of appeal correspond with grounds three and four of Ms Castle’s grounds of appeal.
Did the Judge err in directing the jury that in order to find Ms Castle guilty of murder they had to find Mr Bucca guilty of murder (Mr Bucca ground one)?
On this ground, Mr Bucca contends as follows:
The learned trial Judge erred in law in directing the jury that in order to find Castle guilty of murder, the jury had to find Bucca guilty of murder.
(For convenience referred to as the “impugned direction”).
The facts of the case generally have been addressed in detail earlier in these reasons. Some additional reference to the facts will be necessary in discussing this ground. A number of matters should be noted at this stage.
First, at all stages of the trial the prosecution case was presented on the basis that it was Mr Bucca who was secreted in the car being driven by Ms Castle at the carwash and that it was he who fired the fatal shot. The prosecution case against Ms Castle relied on joint criminal enterprise with Mr Bucca or extended joint criminal enterprise with Mr Bucca, as earlier explained. The prosecution did not seek a guilty verdict against Ms Castle on any other legal or factual basis.
Second, that approach was the same as at the first trial. Included in the directions to the jury in the first trial was this “…if you are not satisfied beyond reasonable doubt that Bucca was there and that he fired the fatal shot then you cannot convict Castle of either murder or of manslaughter”. Although the earlier summing up was not in the same terms as the impugned direction, the effect is the same.
Third, the case for Mr Bucca was that Ms Castle and Mr Gange left the Sapphire Crescent, Highbury address together not long before the shooting and that he (Mr Bucca) was not involved. He said he had left his mobile phone in Ms Castle’s car. It was argued on his behalf, based in part on his evidence, that there was a reasonable doubt that he was in the car and fired the fatal shot.
Fourth, the case for Ms Castle, based in part upon her evidence from the first trial (tendered by the prosecution at this trial), was that Mr Gange was with her and visible in her car at the carwash, she had no idea he was in possession of a gun (loaded or otherwise) and it was he who fired the fatal shot. She said in her evidence at the first trial that the Mr Gange’s actions were unexpected and she was not part of any type of joint enterprise.
The Judge’s summing up and the jury memorandum
The Judge directed the jury to the effect that they could find Ms Castle guilty of murder (or manslaughter) only if they found Mr Bucca guilty of murder. The Judge correctly directed the jury as to the requisite elements for Mr Bucca to be found guilty of murder. There is no challenge to the latter direction.
Further, the Judge correctly directed the jury as to one legal and factual basis upon which Ms Castle could also be guilty of murder, namely that she entered into an agreement with Mr Bucca that Mr MacDonald would be murdered. In that context, the memorandum provided to the jury also directed that in that situation Mr Bucca is also guilty of murder, his guilt being determined by reference to his firing of the fatal shot. The directions also posed a second legal and factual basis for her guilt of murder, namely, extended joint criminal enterprise, again with Mr Bucca.
The oral and written directions included these directions under the heading “Separate verdicts for each accused”:
The point of these pages is to emphasise that you will have to look at these two accused people separately because there could be different verdicts for each. Indeed, there could be different verdicts in any case where there is more than one accused person.
Reading from the memorandum. When returning your verdicts, the foreperson will be asked in relation to each of the accused persons separately whether you find that accused guilty or not guilty of the crime of murder. You will be asked, first, for your verdict in relation to Mr Bucca. You must, therefore, during your deliberations, ask yourselves separate questions: am I satisfied, beyond reasonable doubt, on the basis of the evidence against the accused, Mr Bucca, that he is guilty? And you must also of course ask: am I satisfied, beyond reasonable doubt, on the basis of the evidence against the accused, Ms Castle, that she is guilty? And to interpolate that in light of what I have just been telling you, in the case of Ms Castle, guilty of what, murder or manslaughter, is something that you have to make a decision upon. You will have to decide whether she is also of course guilty of anything because the other option, in respect of both accused, is of course that they are not guilty of anything.
Returning to the memo, there are complicating features however in this case. First, you may only find Mr Bucca guilty if he fired the fatal shot. If you are not satisfied of that you must find Mr Bucca not guilty.
Second, if you find Mr Bucca guilty of murder you may find Ms Castle guilty of murder or guilty of manslaughter or not guilty of either offence.
Third, if you were to acquit Mr Bucca on the basis that you are not satisfied that he fired the fatal shot, you would also have to acquit Ms Castle of both murder and manslaughter because the whole basis of the prosecution case against her is that her guilt is dependent upon an agreement with Mr Bucca, of one of the forms of agreement discussed above and dependent on the fact that Mr Bucca fired the fatal shot.
This last paragraph, ladies and gentlemen, is the prosecution case and if you are not satisfied beyond reasonable doubt that Mr Bucca was there and that he fired the fatal shot, you cannot convict Ms Castle of either murder or of manslaughter.
This third feature, when you think about it, it must follow as a matter of logic and therefore only four combinations of verdict are available to you in this case that I have set out at the top of page 9. Again, reading from there. Therefore, only the following four combinations of verdicts are available to you.
One, Mr Bucca guilty of murder with Ms Castle guilty of murder.
Two, Mr Bucca guilty of murder with Ms Castle not guilty of murder but guilty of manslaughter.
Three, Mr Bucca guilty of murder but with Ms Castle not guilty of murder and not guilty of manslaughter.
Four, Mr Bucca not guilty of murder with Ms Castle not guilty of murder and not guilty of manslaughter.
In other words, as soon as you have that verdict for Mr Bucca of not guilty of murder, it follows that Ms Castle is not guilty of murder and not guilty of manslaughter.

It should be noted that these directions did not confine the possible verdict against Ms Castle to that of murder; both manslaughter or a complete acquittal were included. In other words, even if Mr Bucca was found guilty of murder on the basis that he fired the fatal shot, the full range of verdicts were available in the case of Ms Castle.
Consistently with the impugned direction, the written and oral directions did not include a verdict of not guilty of murder for Mr Bucca but a verdict of guilty of murder or manslaughter for Ms Castle.
We should also refer to a further direction by the Judge later in the summing up:
The prosecution case is that the evidence, as a whole, demonstrates beyond reasonable doubt that the shooter was Mr Bucca. The case for both of the accused is that the shooter was Mr Gange. No other candidate has been suggested by anyone, but I emphasise to you that it is not just a matter deciding which of the two, Mr Bucca or Mr Gange, was more likely to have been the shooter. That is simply not good enough. Mr Bucca can only be convicted of murder if it is proven, beyond reasonable doubt, that he was the shooter to the exclusion of any reasonable possibility that the shooter was Mr Gange or, indeed, any other person other than Mr Bucca. So that is what has to be proved beyond reasonable doubt and that is what you need to be satisfied of.
There is no challenge to the correctness of that direction.
Proposed jury memorandum and the application for further directions towards the end of the summing up
Prior to the addresses of counsel, the Judge had distributed to counsel the proposed memorandum dealing with the elements of the offences of murder and manslaughter and the bases of liability on the case against each accused, but also incorporating other considerations in the light of the factual issues.
In the absence of the jury objection was taken to those portions of the memorandum relevant to this ground of appeal. Counsel on behalf of Mr Bucca submitted:
The difficulty that I have is that that direction connects the findings with respect to Mr Bucca with Castle and could operate very unfairly to him. It could, frankly, cause the jury to review the case against him because they may find it unpalatable to acquit Ms Castle.
Senior counsel for Ms Castle supported the directions the subject of ground one because the prosecution had pitched its case on the basis that Ms Castle was a party to a joint criminal enterprise or extended joint criminal enterprise with Mr Bucca. Ms Castle’s counsel resisted any suggestion being put to the jury by the Judge that if it was possible Mr Bucca was not the shooter, Ms Castle could nonetheless be guilty of murder or manslaughter.
At that stage, senior counsel for the prosecution recognised that the jury, when considering the evidence against Mr Bucca, may not be in a position to find, beyond reasonable doubt, that it was him in the car. On the other hand, she acknowledged that when considering the case against Ms Castle, they may be satisfied beyond reasonable doubt that she was a party, with another person, to a joint enterprise for murder. However she did not express a final and considered view as to the proposed memorandum. In her final address prosecution counsel described as fanciful any collusion between Mr Gange and Ms Castle.
The Judge ruled that he would adhere to his proposed direction, that is, “…if the jury reach a conclusion that they are not satisfied of the guilt of Mr Bucca, it would follow that Ms Castle would be acquitted…”.
Towards the conclusion of the summing up, counsel on behalf of Mr Bucca filed an application for directions as follows:
1. That the jury be given further directions as to why they cannot convict Ms Castle of murder or manslaughter and acquit Mr Bucca of murder.
Particulars
2. It is submitted the jury should be directed in the following way:
2.1If the jury consider it is a reasonable possibility that Castle committed murder with Gange, or that she is guilty of manslaughter with Gange, they would find Bucca not guilty.
2.2The reason they could not find Castle guilty of murder in that scenario is because whilst it is a reasonable possibility that Gange and Castle committed murder that would not be proof beyond a reasonable doubt, in the case against Castle, that she committed murder.
2.3The facts are a matter for the jury and therefore depending upon the view the jury took of the facts they could come to a conclusion beyond a reasonable doubt that Ms Castle committed murder with Gange – the reason they are not entitled to convict Ms Castle of murder on that basis is because the prosecution has not asked the jury to consider the verdict in that way.
2.4If the jury form the view that Castle is guilty of the crime of murder with Gange they should not find Bucca guilty of murder in order to be able to convict Castle.
Counsel for Mr Bucca said the purpose of his suggested directions was “…to explain to the jury why they are given the options that that they are. In effect, to try and relieve, in a way, an emotional lever that the directions create here to convict Bucca if they want to convict Castle”.
Senior counsel for Ms Castle maintained his objection to the proposed directions on the basis that it would be “…a complete refashioning of the case as presented by the prosecution”. It was submitted that no-one had ever suggested that there was a path to murder for Ms Castle if Mr Gange was the shooter.
The Judge incorporated aspects of these directions into the latter part of his summing up when reminding the jury of Mr Bucca’s contentions:
In the context of Mr Barklay’s contention that it was a reasonable possibility that the shooter was Mr Gange, I mention also his submission that in considering Ms Castle’s conduct and communications, even if you were to take the view that she was involved in some plan to deceive Mr Macdonald with a view to meeting up with him and murdering him, that evidence was equally consistent with such a plan being one with Mr Gange and if you were to accept that as a reasonable possibility, you would not convict either Ms Castle or Mr Bucca because the prosecution case is dependent upon the plan being with Mr Bucca, and Mr Bucca being the shooter.
As can be seen, the jury was again told that in the situation where they considered it a reasonable possibility that Ms Castle was involved in a plan with Mr Gange to murder Mr MacDonald, they would not convict either Ms Castle or Mr Bucca “…because the prosecution case is dependent upon the plan being with Mr Bucca, and with Mr Bucca being the shooter”.
As indicated earlier, the jury were correctly directed that “…Mr Bucca can only be convicted of murder if it is proven, beyond reasonable doubt, that he was the shooter to the exclusion of any reasonable possibility that the shooter was Mr Gange…”.[2] That became the central question in Mr Bucca’s trial. Indeed the High Court recognised as much in the earlier appeal to that Court when it said:[3]
The central issue in Bucca’s trial was proof that he was the shooter.
[2] Summing up, page 43.
[3] Castle v The Queen; Bucca v The Queen [2016] HCA 16 at [78], (2016) 259 CLR 449 at 475.
The prosecution recognised the differing strengths of the respective cases against the two accused but maintained its factual approach that Mr Bucca was the shooter and without satisfaction on that topic, the jury should acquit both accused of murder and manslaughter.
How would these directions, both written and oral, have been understood by the jury?
The ground of appeal is that it was a misdirection to say “… that in order to find Castle guilty of murder, the jury had to find Bucca guilty of murder”.
During the course of argument on the appeal it was contended that the impugned direction failed to allow the jury to consider the question of Mr Bucca’s guilt solely by reference to the case against him. In the same vein, it was contended that the routes to acquittal for Mr Bucca were constrained “…because the jury were not entitled to acquit [Mr Bucca] on that basis without acquitting Ms Castle”. The basis alluded to was that of a reasonable doubt that Mr Bucca was the shooter or a positive assertion that Mr Gange was the shooter. A little later what was described as the real nub of the argument was “…that, effectively, the memo required, in order for Ms Castle to be convicted of murder, Mr Bucca had to be convicted”.
In our view the directions, properly understood, did not present a risk that the jury might wrongly convict Mr Bucca in order to, or because that was necessary to be able to, convict Ms Castle. The directions did not require or mandate a particular approach. The directions did no more than instruct the jury that before they could be in a position to convict Ms Castle of murder, they first would have to be satisfied beyond reasonable doubt that Mr Bucca was guilty of murder, that is, that he fired the fatal shot. Viewed overall the directions made it abundantly plain that, unless the jury was satisfied beyond reasonable doubt that Mr Bucca was the shooter, to the exclusion of the reasonable possibility that Mr Gange, or any other person, was the shooter, the jury should acquit him. Further, bearing in mind the way the prosecution had always conducted its case, unless they were so satisfied, Ms Castle would also have to be acquitted of murder and manslaughter.
Such directions did not deny a separate consideration by the jury of the case against each accused. The directions did not blur the lines between separate considerations of each case. Bearing in mind the way the case was presented and the issues joined, the directions merely stated the obvious concerning Mr Bucca. If he was acquitted, so too did Ms Castle have to be acquitted. Mr Bucca was not prejudiced by the impugned direction.
It should also be noted that the applicant made this written submission:
It is to be acknowledged that the trial Judge correctly directed the jury that they could only convict Mr Bucca of murder ‘if it [were] proven, beyond reasonable doubt, that he was the shooter to the exclusion of any reasonable possibility that the shooter was Mr Gange or, indeed, any other person other than Mr Bucca’. If, but only if, it could be assumed that the jury followed that direction and were not prejudiced by the impugned direction, then it could be concluded that no miscarriage of justice had occurred. The authorities establish that it is not permissible to make that assumption.
[Citations omitted].
That “assumption” is a matter to which we will return.
The prosecution case was always that Ms Castle reached an agreement with Mr Bucca to lure Mr MacDonald to a meeting without informing him that Mr Bucca would also be present. That evidence came from M. It was always the prosecution case that Mr Bucca fired the fatal shot. Although the Judge is not bound by the prosecution formulation of a case, an alternative path to conviction should only be left if there is no unfairness to all accused.[4]
[4] R v Franco [2003] SASC 140 at [20]-[21], (2003) 139 A Crim R 228 at 233.
To have introduced, at such a late stage of the trial, a new pathway to the conviction of Ms Castle, would have been very unfair to her. The Judge was correct not to leave that additional pathway to conviction. It was a permissible exercise of discretion and not an error of law not to have done so. In our view the directions were legally and factually correct.
Ms Castle was convicted of murder
Further, it needs to be remembered that Ms Castle was convicted of murder. A question which arises is whether the evidence was sufficient to prove her guilt for murder on the basis that she entered into an unlawful agreement with Mr Gange or that she had the requisite intention or foresight for murder if Mr Gange was the other person in the car. The respondent submits that in the absence of proof beyond reasonable doubt that Mr Bucca was the shooter, there was insufficient evidence to prove that Ms Castle was guilty of murder. In other words, in that situation it would not have been open, on the evidence admissible against her, to find her guilty of murder or manslaughter.
The applicant argues that if the jury had thought there was a reasonable doubt that Mr Bucca was in the car and fired the fatal shot, such that he was entitled to be acquitted, Ms Castle nevertheless might still be guilty of murder. In other words, it was open to the jury to conclude, and it should have been left to them, that, even if they had a reasonable doubt as to the identity of the shooter Ms Castle still could be convicted of murder.
However, the respondent points to a combination of features of the evidence that go to prove that Mr Bucca fired the fatal shot, but which are not replicated in the evidence that would be relied upon in any attempt to prove that Mr Gange was the shooter. Based upon that evidence the respondent argues that Ms Castle could only have been convicted of murder if Mr Bucca fired the fatal shot.
First and foremost is the evidence of M, to which we have already referred, of the discussion between Mr Bucca and Ms Castle about luring Mr MacDonald to a meeting at which Mr Bucca’s presence would be kept secret from Mr MacDonald. That conversation was, at the very least, relevant to Ms Castle’s foresight of what Mr Bucca might do. There was no evidence of such a conversation between Mr Gange and Ms Castle.
Second, there is evidence that Mr Bucca and Mr Castle spent an extended time together on the morning of the shooting with ample time to discuss what would occur with Mr MacDonald. Although on Mr Bucca’s account Mr Gange and Ms Castle left about ten minutes after Mr Bucca’s and Ms Castle’s return, there was no evidence of Mr Gange and Ms Castle being together for an extended time, much less doing a large loop as Mr Bucca said he did with Ms Castle. It was after Ms Castle and Mr Bucca returned from their drive that the text message to Mr MacDonald setting up the meeting was sent by Ms Castle.
Third, there was a very different relationship on the evidence between Ms Castle and Mr Bucca on the one hand and Ms Castle and Mr Gange on the other. Ms Castle and Mr Bucca had commenced a sexual relationship shortly before Mr MacDonald’s death. Ms Castle had previously been in a relationship with Mr MacDonald. There was no evidence of a close relationship between Ms Castle and Mr Gange. Mr Gange was in the process of moving to Mildura with M.
Fourth, the lack of any evidence from which it could be inferred that Ms Castle was aware of Mr Gange having a firearm.
Fifth, the evidence Ms Castle had information from which Mr Bucca’s animosity towards Mr MacDonald could be inferred. The transcript of call number 165 from Mr MacDonald to her on 22 January 2013 reads as follows:
One last thing jas[5] threatend to take car over that $1,000 we owe and to put a bullet in me love you always will.
There is no evidence of Ms Castle being aware of such a level of hostility felt by Mr Gange to Mr MacDonald.
[5] “Jas” being short for Jason (Bucca).
Sixth, the evidence, (leaving to one side Ms Castle’s evidence from the first trial) clearly suggested Ms Castle attended the car wash with someone hidden in the boot. Mr Gange was suffering from very significant physical disabilities at the time which would have restricted ease of movement from the boot into the cabin. M was Mr Gange’s partner but also a registered nurse. Mr Gange was involved in a serious car accident in September 2009 leaving him with burns to 55 per cent of his body. M gave extensive evidence of his burn injuries, skin grafts, multiple operations, recovery and rehabilitation. His mobility and flexibility were significantly compromised, although his constant use of methylamphetamine and other drugs eased some of the pain and restrictions. He died in September 2013.
Seventh, if Mr Gange had been in the cabin on arrival at the carwash, the ability of the jury to draw any influence against Ms Castle as to the existence of an agreement, knowledge and foresight, would also be very limited.
Finally, we turn to the implications had the jury not been satisfied that Mr Bucca fired the fatal shot. A failure to be so satisfied would have meant that there was a reasonable possibility that Mr Gange was in the car as claimed by Ms Castle. As such, M’s evidence, in a large part, would have to have been rejected. Mr Gange’s presence was a central part of Ms Castle’s earlier evidence. If the jury had considered that Mr Gange’s presence in the car was a reasonable possibility, on what basis might they then have rejected other aspects of her evidence, particularly that she was not a party to any unlawful agreement; that she had no knowledge that Mr Gange had a gun and that his actions took her by surprise. Indeed, on her account, he threatened her with the gun and told her to drive off.
The only available basis upon which Ms Castle could have been convicted of murder was that Mr Bucca was present and fired the fatal shot.
Can it be assumed the jury applied the otherwise correct directions?
Mr Bucca contends that it cannot be assumed that the jury applied the directions in respect of which there is no complaint. His counsel sought to rely upon a line of High Court authority it was submitted stood for the proposition that there will be occasions where it ought not be assumed that a jury will or has applied legally correct and unchallenged directions.
Mr Bucca placed particular reliance upon Gilbert v The Queen[6] (Gilbert) and Gillard v The Queen (Gillard).[7]
[6] [2000] HCA 15, (2000) 201 CLR 414.
[7] [2003] HCA 64, (2003) 219 CLR 1.
In our view these cases stand for a relatively confined proposition of law and, in any event, are readily distinguishable on their facts. Further, we do not consider that Gilbert and Gillard can be extended to the facts of this case.
Gilbert involved charges of murder against three men. Manslaughter was not left to the jury as a possible verdict, consistent with what was believed to be the law in Queensland at the time.
In the Court of Appeal it was common ground that manslaughter should have been left to the jury. Notwithstanding this error, the Court of Appeal dismissed the appeal on the basis that there was no substantial miscarriage of justice.
The High Court, by majority, held that the failure to direct the jury on manslaughter was material and, in applying the proviso, it could not be concluded that the jury, properly instructed, would necessarily have returned a verdict of murder. This conclusion was reached even though the Judge correctly directed the jury on the elements of murder. The majority, in part, approached the case on the basis that an appellate Court must not assume that the jury approached its task in a “mechanistic” manner, divorced from a consideration of the consequences. Even absent the death penalty, other realities may have influenced the decision.[8] It was accepted that there was an error of law by incorrectly not leaving manslaughter as an alternative. In that situation it was not to be assumed that the jury would not have taken that option if it had been available to them.
[8] [2000] HCA 15 at [13]-[17], (2000) 201 CLR 414 at 420-421.
In Gillard, again there was a refusal to leave manslaughter to the jury. Again the proviso was not applied because it could not be said that a substantial miscarriage of justice had not occurred even though the jury had been properly directed on the elements of murder. Gilbert was applied.[9]
[9] [2003] HCA 64 at [133]-[134], (2003) 219 CLR 1 at 41-42.
Subsequently the High Court has considered Gilbert and Gillard in James v The Queen (James).[10]In James the accused was charged with two offences in the alternative, arising from the use of a motor vehicle. The two charges were intentionally causing serious injury to another and the less serious charge of recklessly causing serious injury to another. A question from the jury during the course of its deliberations prompted consideration of whether yet another alternative should be left to it. The Judge refused to leave that alternative. The Victorian Court of Appeal dismissed the appeal rejecting the ground that the Judge’s failure to leave further alternative verdicts for lesser offences had occasioned a miscarriage of justice.
[10] [2014] HCA 6, (2014) 253 CLR 475.

Third, while Ms Castle concedes that the evidence permits an inference to be drawn that she must have known Mr Bucca intended to confront Mr MacDonald at the car wash, that concession understates the matters the jury were entitled to infer from the evidence. A confrontation which was not going to involve violence could have occurred anywhere and at any time. Such a confrontation did not require Mr MacDonald to be lured into the vehicle driven by Ms Castle in the early hours of the morning. If all that was intended was that Mr Bucca wished to confront him about his grievances with him, that could have been achieved easily by sending text messages as had already occurred. The suggestion of a simple confrontation fails to have any regard to the degree of animosity felt by Mr Bucca towards Mr MacDonald and Ms Castle’s knowledge of that animosity and her knowledge that Mr Bucca was armed with a handgun.
In all the circumstances it was open to the jury to conclude on the evidence that Ms Castle and Mr Bucca had agreed to lure Mr MacDonald to the car wash with the intention of them transporting him to another secluded location; that to the knowledge of Ms Castle this would be achieved by the use of a firearm in circumstances where Mr Bucca’s known hostility towards Mr MacDonald, and the obvious volatility of the situation, were sufficient to prove that Ms Castle contemplated or could foresee that Mr Bucca might use the gun to kill or inflict grievous bodily harm to Mr MacDonald. Consideration of the whole of the evidence does not require the conclusion that the jury must have had a reasonable doubt about Ms Castle’s guilt.
This disposes of the appeal ground that the verdict of murder was unreasonable and unsupported by the evidence. In the circumstances, it is unnecessary to address Ms Castle’s alternative submission that it was not open for the jury to be satisfied beyond reasonable doubt she was guilty of manslaughter.
We grant permission to appeal on this ground but dismiss the ground of appeal.
Conclusion
We grant permission to appeal on grounds one, two and three of Mr Bucca’s appeal, and ground five of Ms Castle’s appeal. We dismiss Mr Bucca’s appeal on all grounds. We dismiss Ms Castle’s appeal on all grounds.