R v Miller; R v Presley; R v Smith - [2017] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILLER; R v PRESLEY; R v SMITH
[2017] SASCFC 123
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Lovell)
21 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
EVIDENCE - GENERAL PRINCIPLES - FUNCTION OF JUDGE AND JURY - SUFFIENCY OF EVIDENCE
The three appellants and another, Betts, were found guilty of murder by a jury following their involvement in a violent altercation in which Betts fatally stabbed the deceased, Hall. The appellants also either pleaded guilty to or were found guilty of aggravated causing harm with intent to cause harm to another man, King. The appellants’ liability for the offences was left to the jury on the basis of either joint criminal enterprise or extended joint criminal enterprise.
The appellants unsuccessfully appealed against their convictions to the Supreme Court of South Australia (Court of Criminal Appeal). However the High Court allowed the appeals and remitted the proceedings in each case to this Court for determination of a single ground, that the verdicts were unreasonable or could not be supported having regard to the evidence.
Held per Kelly J (Vanstone and Lovell JJ agreeing): allowing the appeal of Miller against conviction for murder.
1. Having regard to the absence of evidence directly implicating Miller as an assailant and the evidence of his intoxication, it was not open to the jury to conclude beyond reasonable doubt that he was party to more than a plan to cause harm with intent to cause harm. There was sufficient evidence to prove that Miller must have contemplated that his companions might engage in unlawful and dangerous acts in relation to Hall and King using one or more weapons, and therefore it was open for the jury to conclude that Miller was guilty of the manslaughter of Hall.
The appeal of Miller is allowed. Miller’s conviction for murder is quashed and a verdict of manslaughter substituted.
Miller’s appeal against conviction for causing harm with intent to cause harm is dismissed.
Held per Kelly J (Vanstone J agreeing, Lovell J contra): dismissing the appeals of Presley and Smith against conviction for murder and Smith’s appeal against causing harm with intent.
2. It was open to the jury to conclude on the basis of the circumstantial evidence that Presley and Smith, as members of the group who returned to the laneway carrying weapons, joined in the attack on Hall and that they did so with the intention to do at least really serious bodily harm.
Criminal Law Consolidation Act 1935 (SA) s 11, s 24(1), s 353, referred to.
Miller v R (2016) 334 ALR 1; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; R v Bosworth (2007) 97 SASR 502; Huynh v R (2013) 295 ALR 624, discussed.

R v MILLER; R v PRESLEY; R v SMITH
[2017] SASCFC 123
Court of Criminal Appeal: Vanstone, Kelly and Lovell JJ

VANSTONE J. I have had the benefit of reading the reasons of Kelly J. I agree with those reasons and with the conclusions her Honour has reached. I would order as follows:
Re Miller:
1.Allow the appeal against conviction for murder.
2.Set aside that conviction and substitute a conviction for manslaughter.
3.Dismiss the appeal against conviction for count 2.
Re Presley:
1.Dismiss the appeal against conviction for murder.
Re Smith:
1.Dismiss the appeal against both convictions.
KELLY J.
Introduction
The appellants, Everard Miller (Miller), Johnas Presley (Presley) and Wayne Smith (Smith), and a fourth man, Joshua Betts (Betts), were jointly charged with one count of murder[1] and one count of aggravated causing harm with intent to cause harm,[2] arising from an incident on 12 December 2012. At trial all co-accused pleaded not guilty to the offence of murder. Betts, Miller and Smith pleaded not guilty to aggravated causing harm with intent to cause harm. Presley pleaded guilty to that offence.
[1] Contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).
After a trial by jury the appellants and Betts were found guilty of murder. Betts, Miller and Smith were found guilty of aggravated causing harm with intent to cause harm. The prosecution case at trial was that the four co-accused were part of a group of Aboriginal men who attacked and killed Clifford Hall (Hall) and assaulted Wayne King (King) at approximately 11.00 pm on 12 December 2012 in Elizabeth Park. The prosecution conducted its case on the basis that Betts inflicted a fatal stab wound to Hall and Presley assaulted King with a baseball bat. It was the prosecution case in respect of count 1 that Betts, Presley, Miller and Smith were part of a joint criminal enterprise that had as its object, or within its contemplation, an attack on Hall with weapons, accompanied by an intent to cause grievous bodily harm. In respect of count 2 it was the prosecution case that Miller and Smith together with Betts were engaged in a joint criminal enterprise with Presley that had as its object an attack on King with weapons, accompanied by an intention to cause harm.
The appellants unsuccessfully appealed against the jury verdicts to the Court of Criminal Appeal in February 2015 on a number of grounds.[3] They appealed those decisions in the High Court of Australia.[4] Ultimately the High Court allowed the appeals and remitted the proceedings in each case to this Court for determination of the sole ground which contends that the verdicts in the appeals of Miller and Smith and the verdict in the appeal of Presley are unreasonable or cannot be supported having regard to the evidence.[5]
[3]    R v Presley (2015) 122 SASR 476.
[4]    Miller v R (2016) 334 ALR 1.
[5]    Criminal Law Consolidation Act 1935 (SA) s 353.
Arising from that ground of appeal, a key issue is whether the levels of intoxication experienced by each of the appellants at the time of the offending was such as to render the verdicts unsafe, in light of the requisite foresight required for liability on the basis of joint criminal enterprise, or extended joint criminal enterprise.
Background
It is necessary to set out the circumstances of the offending generally, and in relation to each appellant in some detail.
Prior to the offending
It is common ground that the attack on King and Hall occurred just before 11.00 pm on 12 December 2012 at Grant Street, Elizabeth Park. Hall and King, both of whom lived on Grant Street, were assaulted by a group of males of Aboriginal appearance who had come from 33 Hayles Road, Elizabeth Park, a short distance away.
In the hours prior to the attack, a number of people including the appellants and Betts had been drinking together at 33 Hayles Road, Presley’s home. During the evening, Betts, Presley and Presley’s girlfriend left to obtain some marijuana while Smith and Miller remained. As Betts, Presley and Presley’s girlfriend were returning to Hayles Road, Betts paused to urinate against the fence by 12 Grant Street. Hall and King were conversing on the front porch of King’s house at 13 Grant Street. At some stage King became aware that Hall had left the front of his house and was in a laneway (between 10 and 12 Grant Street) talking to two Aboriginal males, Betts and Presley.
Hall approached Betts and Presley at the entrance of the laneway and told them not to urinate on the street. Hall was joined by a number of his neighbours, and Presley indicated that he was looking to buy cannabis. Hall indicated that he did not want that behaviour in the street either. There were raised voices and abuse between Betts’ group and Hall including, on some accounts, racial slurs against Betts and Presley by Hall and one of his neighbours. Betts was punched to the mouth and suffered a split lip, and Hall was seen to push either Betts or Presley. Betts and Presley left and returned to 33 Hayles Road. A prosecution witness, Mr Willis, who was at Hayles Road estimated that Betts, Presley and Presley’s girlfriend were gone for an hour and a half, at most.
On the group’s return, Betts told others that he had been struck by “three white fellas” who had jumped him in the alleyway. His lip was split and bleeding. Presley said “Let’s go back and see what these people – go and see what the problem is”.
Mr Willis said that he saw Betts, Presley, Smith and Miller leave together on foot from the Hayles Road house. Presley had a baseball bat. Mr Willis followed the group in his car and saw the appellants and Betts go into the laneway. He then drove back to Presley’s home.
The attack
The group of men from Grant Street were still gathered near the entrance of the laneway when the appellants and Betts returned. Witnesses gave varying estimates of the time that elapsed between the first incident between Hall, Betts and Presley and the attack at just before 11.00 pm, ranging from three minutes to 20 minutes.
King’s evidence was that he heard “a heap of people in the front of the laneway and they were bashing or hitting the fence with whatever weapons they had”. He could not say how many men were present. Hall yelled out, “Run, they’ve got weapons”. King, who was in the laneway, started to run away and was struck from behind on his left shoulder by something solid. He turned around, running backwards and saw the two males that he had seen earlier in the evening, namely Betts and Presley. Both of those men had something in their hands and they struck him to the legs, rib and arms. One man tried to strike him on his head. King attempted to protect his head with his arm and was struck to his left arm with something that felt like a baseball bat by the taller of the males, before he passed out. King sustained a fracture to his upper arm, requiring surgery. It was this assault on King which was the subject of count 2.
Ms Bateman, from Grant Street, observed the attacks on Hall and King. She described a group of five or six Aboriginal people walking through the laneway, one of whom was “a big guy in front of them and he was carrying a shovel”. She fled to retrieve a cricket bat from inside a house and when she returned she saw two males running after King. She next saw King on the ground being kicked and hit by two males, both of whom had something in their hands, and one of whom had a crucifix on his face. Betts has a tattoo in the shape of a cross on his face. A third, larger male then approached her and threatened her. He was carrying a shovel. At that point Ms Bateman observed Hall on the road near 11 Grant Street, with three or four people around him hitting and kicking him.
Another witness from Grant Street, Ms Turner, saw at least six to eight Aboriginal “boys” run out of the laneway. Hall picked up a garbage bin to throw but was struck from behind by one of the males who had “a long pole with a square bit on the top” (on the prosecution case this was the shovel). Ms Turner observed that male moving the object overhead and down onto Hall’s head in a chopping motion. Ms Turner also saw Betts inflict the stab injury when she saw a “hand coming at him like at the back of him and hitting him” on his back just below his shoulder blade. Ms Turner also described people gathered around Hall kicking and hitting him, and said that the male with the metal pole hit Hall with it and stomped on his stomach. She observed four or five Aboriginal men around Hall.
Another neighbour, Ms Oldenhampson, observed five or six males come down the laneway, surround Hall and King, and kick Hall while he was on the ground.
Mr Finlay-Smith was in his front yard on Grant Street. He observed five or six people in the laneway and saw Hall hit across the head with what he thought was a shovel and dragged towards the middle of the road by two men. One of those men held the shovel and the other one a silver pole (on the prosecution case, the baseball bat). When Hall was on the ground he was bashed by approximately four people, one of whom used a bottle to hit Hall.
Presley’s girlfriend recalled that when she woke up after blacking out she saw Betts, Presley, Miller and Smith at Presley’s house. Presley and Betts were agitated and screaming.
When he returned in his car, Mr Willis saw Betts, Presley, Miller and Smith returning to the premises together. He recalled that someone had a baseball bat, but could not identify who. He also could not recall who, but he heard someone say, “We smashed them. We had a fight”. Mr Willis heard Betts say, “I think I stabbed him, stabbed a bloke in the guts”. Mr Willis drove Miller, Smith and Betts to a nearby premises while Presley stayed at 33 Hayles Road.
Arrests and interviews
Presley was in an agitated state when he was seen by Senior Constable Bos at the front of the Hayles Road premises just after 11.30 pm. He was arrested at approximately 12.25 am.
Betts and Miller were arrested at 1.52 am at the address they had been driven to by Mr Willis.
Smith was seen by police in the vicinity at 2.34 am and allowed to leave. He was later found at 5.15 am sleeping in a car at the address Mr Willis had earlier driven him to. He was arrested at 5.45 pm on 13 December 2012.
Betts participated in an interview on 13 December 2012 during which he admitted to using the knife, but said that there was only one incident with Hall and King, and that he used the knife defensively.
Presley was interviewed only briefly on 13 December 2012. However, he was interviewed again on 22 December 2012 at his request. The interviews of both Betts and Presley were led at trial.
In his interview on 22 December 2012 Presley said, among other things, that he obtained the baseball bat after the first altercation with Hall and King. He ran or jogged back to the scene with Smith, Betts and another man (on the prosecution case, Miller). Smith had a cricket bat, Betts had a knife and the man he did not know had a shovel. Presley said that he struck one man in the elbow only. He did not see Betts stab the person on the ground.
Weapons
After his arrest Betts directed police to a drain at an Elizabeth Park premises where a knife was located. It was 332 millimetres long (blade and handle) with a 202 millimetre blade. Hall’s DNA was found in blood staining on the blade of the knife. On the prosecution case that knife was used in the attack on Hall after it had been taken by Betts from Presley’s house. When police investigated, the cutlery drawer in Presley’s house had been removed from the cabinet and was sitting on the floor.
A shovel was seized from the same Elizabeth Park address. Hair and what appeared to be skin were visible on the leading edge of the blade, and a DNA profile matching Hall was obtained from blood on the shovel. The respondent submits it is significant that there were a number of garden tools at the rear of the Hayles Road house, and contends that the shovel was picked up by one of the appellants as they left to return to Grant Street.
When the police arrived at Grant Street at 11.03 pm on 12 December 2012 a “Passion Pop” bottle was located on the ground near Hall’s hand. It had blood-like stains near the neck label. DNA consistent with Betts’ was found on the mouth area of the bottle, and Smith’s fingerprints were found on the bottle. The respondent argued that the placement of those fingerprints was consistent with Smith having held the bottle both upside down and upright.
The appeal to this Court
The High Court remitted for hearing and determination one ground of appeal, namely that the verdict in relation to each of the three appellants is unreasonable or not supported by the evidence.
The test on appeal is whether on the whole of the evidence this Court thinks it was open to the jury to be satisfied beyond reasonable doubt of the guilt of each appellant.
The test was stated by the plurality in M v The Queen[6] as follows:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
… 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.
[footnotes omitted]
[6] (1994) 181 CLR 487 at 493-495.
However, as Hayne J observed (Gleeson CJ and Heydon J agreeing) in Libke v The Queen:[7]
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[footnote omitted; emphasis in original]
[7] (2007) 230 CLR 559 at [113].
In their reasons for remitting these appeals to this Court the plurality crystallised the critical issue for determination in each case as follows:^[8]
As noted earlier, in common to each appeal was a ground contending that the verdict was unreasonable because it was not supported by the evidence. The ground was largely advanced by reference to the unchallenged evidence of the appellant’s intoxication. Determination of this ground in each case required the Court of Criminal Appeal to engage with the evidence and consider for itself the findings that were open as to what the appellant did in connection with the second altercation. The inferences to be drawn from these findings needed to be assessed in the context of the findings that were open as to the appellant’s state of intoxication. It was necessary to consider whether the prosecution had excluded the reasonable possibility that, by reason of his intoxication, the appellant had not in fact come to an understanding or arrangement with the others to inflict grievous bodily harm or to assault a person or persons in Grant Street. In the event that the Court of Criminal Appeal was satisfied that it was open to find that the appellant was a party to an agreement at least to assault a person or persons in Grant Street, it remained to consider whether the prosecution had excluded the reasonable possibility that, by reason of his intoxication, the appellant did not in fact foresee that one of his co-venturers might kill or inflict grievous bodily harm on a person or persons in Grant Street intending so to do.
[footnote omitted]
[8] (2016) 334 ALR 1 at [78].
Although the complaints made by each of the appellants have a number of features in common and much of the evidence at trial was admissible against all appellants, it is necessary to deal with each appellant separately. I shall commence by discussing the arguments made by the appellant Presley.
The appeal of Johnas Presley

Presley was found guilty by a jury of the murder of Hall. He pleaded guilty to the offence of aggravated causing harm with intent to cause harm in respect of King. At the trial it was not in dispute that Presley was one of the persons present and in possession of the baseball bat which he took with him from Hayles Road before the group set out. At trial Presley elected not to give evidence. The appellant’s plea of guilty to the offence of aggravated causing harm with intent to cause harm to King necessarily precluded any suggestion that he used the baseball bat for any defensive purpose.
The issue is whether on the whole of the evidence it was open to the jury to find that he was party to an agreement with the others (or one of the others) to cause death or grievous bodily harm. If not, there is a second issue which arises: whether the finding was open that the appellant Presley was party to an agreement with the others to assault and, if so, whether, in participating in that assault he foresaw that another of the co-accused might kill one of the victims while having the intention to kill or at the very least to cause grievous bodily harm.
Argument on appeal
Mrs Shaw QC submitted that the appeal of Presley centres on the state of intoxication he was in that night against what was said to be the chaotic sequence of events over a very short period of time involving a group of young people who were all intoxicated, aggressive and behaving in an erratic fashion.
It was submitted that the totality of the eyewitness evidence about the second altercation in which Hall was fatally stabbed did not permit the conclusion beyond reasonable doubt that Presley was then still present, let alone one of the group seen assaulting Hall as he lay on the ground.
In support of that submission Mrs Shaw pointed to the inconsistent eyewitness evidence from civilians who lived nearby including Ms Bateman, Ms Turner, Mr Finlay-Smith and others. It was submitted that their evidence did not permit an inference beyond reasonable doubt that Presley was present in the street during the attack on Hall.
Counsel pointed to the interview of Presley in which he said that he did not see Betts stab Hall and that he never saw a knife, and emphasised that there was no evidence where the shovel used in the attack had come from. In light of Presley’s evident intoxication during the events, it was submitted that any inference that Presley had sufficient awareness and knowledge that others had weapons and that he must have contemplated that really serious harm might be inflicted in the course of the altercation could not be drawn beyond reasonable doubt. Mrs Shaw submitted that the state of her client as seen on the video of his arrest and transportation back to the Elizabeth Police Station was one of gross intoxication and consistent with an inability to comprehend what was going on around him.
The starting point for consideration of those submissions is Presley’s plea of guilty to the charge of aggravated causing harm with intent to cause harm. As a consequence of that plea there can be no dispute that at least at the time when King was assaulted, Presley was present at the scene of the assault and in possession of a baseball bat. He acknowledged as much in his interview and further acknowledged that he had picked up that baseball bat and taken it with him from the premises at Hayles Road. In addition he acknowledged that he knew Smith had a cricket bat and one of the others, “the other fella”, referring to Miller, a shovel.
There was evidence about the behaviour of Presley and Betts during the initial altercation with Hall and King in the laneway. There was no suggestion that Presley had been aggressive during that encounter. In fact, the eyewitness evidence reveals that Presley had at that time tried to explain that all they were doing was looking to buy cannabis and that he had waved about an amount of money in the air. It was Hall and King who were angry with Betts’ group initially.
However, there was unchallenged evidence that after that altercation in the laneway with King and Hall, Presley returned to the premises at Hayles Road and was there observed to be in a state of agitation. Presley acknowledged that in his interview with the police on 22 December 2012.
There was evidence which was not disputed that Betts had been punched to the mouth during the initial altercation before he and Presley returned to Hayles Road. Some observed that Betts had a bloodied lip when he returned to the house. At that stage Presley took up a baseball bat and said words to the effect, “Let’s go back and see what these people – go and see what the problem is”.
Mr Willis’ evidence that he saw Betts, Presley, Miller and Smith leave together from Hayles Road was not challenged. Mr Willis described the same four men returning to Hayles Road immediately after the incident and one of them, who was not identified by Mr Willis, saying, “We smashed them. We had a fight”. Mr Willis also heard Betts say at that time, “I think I stabbed him, stabbed a bloke in the guts”. Each of the appellants was present during that conversation.
The evidence revealed that these two altercations occurred over a relatively short space of time. It is evident from the totality of the eyewitness evidence that the time which elapsed between the beginning of the first altercation between Presley, Betts, King and Hall and the end of the second altercation was no longer than 20 minutes and perhaps less.
Against that background there are some important features of the eyewitness evidence which point to the inference that Presley was one of the men who returned and was involved in the attack on Hall. Although the eyewitness evidence was to some extent inconsistent, it contained some common features. Leaving aside the discrepancies in the number of Aboriginal males observed in the street, whether there were four, five or six, no witness described any of them as standing by watching. All were observed to be involved in the assault on Hall.
Ms Bateman in particular, and Mr Finlay-Smith, testified that all of the men around Hall at the time were involved in bashing him. Mr Finlay-Smith described one as having a shovel and another one having a bottle.
Ms Bateman testified that as the assault on Hall took place there was no Aboriginal man in Grant Street who was not taking part in the attack. Her description of what happened when Hall was lying on the ground was that three were kicking Hall and a fourth was standing holding a shovel. She identified the second taller man from the first incident as part of that group.
Ms Turner said she saw three Aboriginal men surround Hall and described one of them wearing silver shorts without a top hitting Hall in the stomach with the pole and stomping on him. She described another man hitting Hall with a pole which had a square top and said that he was not one of the two involved in the earlier incident.
Ms Bateman described the group as it arrived in the laneway on the second occasion. She said she saw one of the males at the front of the group carrying a shovel as the group were walking down the laneway immediately before the second confrontation. Ms Turner described them as running out of the laneway. It was not in dispute that there was no conversation between them prior to the assault on King and Hall commencing.
Notwithstanding the evident contradictions in some of the descriptions of the clothing worn by the respective assailants from each of those witnesses, I consider that the totality of the eyewitness evidence was capable of identifying Presley as being at the scene and involved in the beating of Hall, as well as being one of the men who were standing around kicking and hitting him. Ms Bateman selected Presley from a photographic array as one of the three males who were hitting and kicking Hall and as the man she had seen earlier as the second of the two men, but said that he was not the man who had been urinating. It was never disputed that Betts was the man who urinated immediately prior to the initial altercation. Ms Bateman said that man had something in his hands but she could not see what it was.
In addition to the eyewitness evidence there was some blood matching Hall’s found on the outer rear left leg of the grey shorts seized from Presley. The evidence of the expert concerning that bloodstaining was important:
The bloodstaining consists of approximately 70 spatter stains, mainly within the area of 16 cm x 31 cm on the left leg, extending from the lateral left seam to the mid rear. The near circular stains range in diameter from 1 mm to 5 mm. Elliptical spatter stains were also present indicating a relatively shallow or glancing angle of impact of blood droplets onto fabric. The orientation of the elliptical stains varies consistent with them arising from more than one event and assuming the shorts were being worn by Presley at the time, the position of the impact pattern and the orientation of some of the stains is consistent with that. At least his left hip and thigh were close to and facing the source of Hall’s blood being impacted.
There was expert evidence to the effect that the maximum distance which airborne blood can travel in the absence of wind is two to three metres and a crime scene examiner who went to the scene observed that the blood spatter from where Hall was lying in Grant Street extended no more than one and a half metres.
Accordingly, the expert evidence permitted an inference that Presley was in close proximity to the attack on Hall, likely no more than two to three metres away. Finally, at post-mortem examination the left arm of Hall was observed to have a typical tram-line pattern consistent with him having been struck with a long thin object such as a baseball bat or a pole.
Presley’s intoxication
The evidence of Presley’s intoxication was summarised in the High Court judgment and it is convenient to reproduce that summary below:[9]
[73]The police officers who observed Presley outside the Hayles Road premises at about 11:30pm considered that he was moderately affected by alcohol. A blood sample taken from Presley at 8:28am on 13 December recorded a concentration of 0.054 grams of alcohol per 100 millilitres of blood. If Presley had not consumed alcohol after the second altercation, his blood alcohol level at the time was likely to have been about 0.2. Dr Majumder said that a person with a blood alcohol concentration of the order of 0.2 would have appreciable deficits in the person’s perception of events occurring around them and their decision-making processes would be impaired to some degree.
[74]King said that the two Aboriginal men involved in the first altercation were affected by alcohol. Ms Bateman, one of the neighbours in Grant Street, said the man accompanying the one who urinated on the fence was staggering a bit. Two other neighbours described the Aboriginal men involved in the first altercation as being drunk or intoxicated in some way.
[75]In his interview, Presley gave an account of drinking Passion Pop and Jack Daniel’s. Willis said that, while it was still light on 12 December 2012, he had driven Miller and Smith from the Elizabeth Tavern to the Hayles Road premises, where they met up with Betts and Presley, who were drinking. The group were drinking West End Draught. Willis recalled Presley going to the Elizabeth Tavern and returning with a bottle of Bundaberg Rum. Willis himself had been drinking for two days. He said all of the men were drunk that evening. A few, including Smith, had been smoking marijuana that night.
[9] Miller v R (2016) 334 ALR 1 at [73]-[75].
When the police first saw Presley in the street prior to his arrest he was in an agitated state, pacing about the street. It is plain from the video record of his arrest that he was intoxicated at that time. However, it is also plain from that video that on the trip back to the Elizabeth Police Station, although he was in a highly emotional and agitated state, he gave responsive answers to questions of the police. Of some note are his repeated assertions that he had done nothing wrong, which stand in marked contrast to his later admission that he had assaulted King with the baseball bat.
I have viewed both of the interviews of Presley. One notable feature is his change in mood between the periods prior to his arrest and after his arrest when he was informed that he was being charged with murder. It is true that upon arrest he became extremely distressed and upset. However that conduct is consistent with the realisation on his part of the gravity of the charge that he had just been told he was facing. Having viewed those videos, I consider that, although he was plainly intoxicated, his response to being told that he was being charged with murder was a rational, if emotional, response to the situation which then confronted him.
There was no direct evidence as to Presley’s actual level of intoxication at the time of the incident. Furthermore, the evidence of Dr Majumder, in particular her opinion that a person’s decision-making processes would be impaired to some degree as a result of a blood alcohol concentration of 0.2 grams per 100 millilitres of blood, does not cause me to doubt that Presley knowingly became a party to the plan to attack the two men involved in the earlier altercation.
Contrary to the submission of Presley’s counsel, I consider it was open to the jury to conclude on the basis of all of the circumstantial evidence that he, as one of the members of the group who returned to the laneway, two of whom were armed with plainly visible weapons, namely the baseball bat and the shovel, must have been aware that the plan was to do some really serious harm to others. In the case of Presley, it is of some significance that he was proved to be one of the group carrying one of the weapons.
I consider that inference was open from all of the surrounding circumstances, including the behaviour and demeanour of Presley and Betts upon their return to Hayles Road after the first altercation and the fact that weapons capable of causing grievous bodily harm to a person were picked up, carried into the second altercation and that those weapons were used almost immediately upon arrival at the scene.
In reaching this conclusion I consider it to be significant that there has not been nor could there be any complaint about the directions the trial Judge gave as to the facts which needed to be proved before the jury could find that Presley was party to a joint enterprise to cause at least grievous bodily harm to Hall.
Contrary to the submission made in this Court by both Presley and Miller, it was not a prerequisite to a finding of guilt that Presley, or any of the others, were aware that Betts had a knife. I regard it as significant that no complaint was made at trial that the Judge’s directions in this respect were incorrect. Nor was there any submission of the kind made in this Court on behalf of either Presley or Miller. The trial Judge correctly directed the jury that knowledge of the actual method by which the really serious harm was to be inflicted was not an essential prerequisite to a finding that the appellant under consideration had the necessary intention or awareness.
The observations of Duggan J in R v Bosworth[10] are apposite to the present case:
If the appellants agreed to inflict grievous bodily harm or an intention to inflict grievous bodily harm was within the contemplation of the appellants, knowledge of the manner in which such harm was to have been caused would not have been essential for liability for the crime of murder: R v Woolley. However, the question whether or not a particular appellant had knowledge that weapons might be used remains important in determining whether there was an intention to inflict grievous bodily harm or whether conduct involving such an intention was contemplated.
[footnote omitted]
[10] (2007) 97 SASR 502 at [82].
In Huynh v R[11] the High Court unanimously observed that a direction given at trial that required an agreement to kill or cause really serious bodily harm necessarily included the use of a knife or similar bladed weapon was a favourable direction to the appellants.
[11] (2013) 295 ALR 624.
Accordingly, even without proof that Presley was aware that one of the group was in possession of a knife, I consider that it was open to a jury, properly instructed as they were, to conclude that Presley joined in the attack on Hall and that he did so with the requisite state of mind.
For these reasons I would dismiss the appeal of Presley.
The appeal of Everard Miller
At trial Miller elected not to give evidence. Miller was found guilty by the jury of the murder of Hall and aggravated causing harm with intent to cause harm of King.
The argument in support of Miller’s submission that on the whole of the evidence his convictions on both counts are not supported by the evidence centres on the state of the evidence about Miller’s level of intoxication.
The evidence concerning Miller’s intoxication was summarised in the High Court judgment and it is convenient to reproduce that summary below:[12]
[12] Miller v R (2016) 334 ALR 1 at [65]-[72].
[65]At the time of his arrest, Miller was observed by Constable Penn to be “extremely intoxicated by something”. He was unsteady on his feet, his speech was slurred, he struggled to keep his eyes open and he smelt of alcohol. Constable Penn kept constant observations on him while Miller was in the holding cell at the Elizabeth Police Station. He noted that Miller was “extremely lethargic and fell asleep in the holding cell”. A breath test administered by a police officer recorded an alcohol concentration of 0.167 grams of alcohol per 100 millilitres of blood at the time of Miller’s arrest. At about 9:20am on 13 December 2012, a blood sample was taken from Miller. This revealed an alcohol concentration of 0.139 grams of alcohol per 100 millilitres of blood. The blood sample also revealed 0.5 grams per 100 millilitres of blood of diazepam and 0.04 grams per 100 millilitres of blood of nordiazepam. Nordiazepam is the metabolite of diazepam. The combined effect of these drugs was at the lower end of the therapeutic range. Diazepam is a drug of the benzodiazepine family. Among its effects is that it operates as a sedative and muscle relaxant. The sample also revealed three micrograms per litre of blood of THC, the active chemical in cannabis.
[66]Dr Majumder, a pharmacologist, gave evidence in Miller’s case. She estimated, based on Miller’s blood sample, that at around the time of the second altercation Miller’s blood alcohol reading would have been 0.292. The estimate assumed that alcohol was eliminated from Miller’s system at 0.015 per cent per hour. The rate of elimination, which varies between individuals, is between 0.01 to 0.02. Taking into account that range, Dr Majumder considered that Miller’s blood alcohol concentration at the time of the second altercation was between 0.241 and 0.342.
[67]Dr Majumder was asked about the effect on her calculations if Miller had consumed two standard drinks after the second altercation. She said two standard drinks would not have raised Miller’s blood alcohol levels by more than 0.04 per cent on average. She was asked what effects a blood alcohol concentration in the range of 0.272 to 0.322 would have on the mental state and behaviour of the subject. Dr Majumder said that, at these levels, there would be “significant effects on the behaviour and mental state” of the person. She went on to explain that the person would be “very drunk” and that it would be obvious to an observer because the person’s speech would be slurred and he or she may have stumbling gait and glazed eyes. Dr Majumder said that levels of 0.272 to 0.322 would be “close to the level that is generally considered very high level”. It is a level at which a person can lose consciousness. A person who has not lost consciousness and who has this level of alcohol in the blood is a person with a degree of tolerance to the effects of alcohol.
[68]Dr Majumder said that at the assumed levels of alcohol concentration in Miller’s blood, an individual’s “thinking process, decisionmaking process will be significantly impaired”. The person would have problems concentrating and would have a short attention span. An experienced drinker may be slightly less affected than a non-experienced drinker. At this high level of blood alcohol concentration the person would have “significantly impair[ed] decisionmaking and also planning … so the person may not be able to foresee or predict the consequences of certain decisions”. Dr Majumder explained that alcohol can release aggressive behaviour and cause disinhibition. Its effects may cause the person to act without thinking. At these high levels a person may be too intoxicated to be aggressive.
[69]Dr Majumder considered it possible that the interaction of diazepam and nordiazepam could enhance the effects of alcohol. The impairment of concentration might be more pronounced taking into account the interaction with diazepam. It was possible that this enhanced effect would include the impairment of foresight.
[70]Dr Majumder considered the level of THC in Miller’s blood to be a moderate level. She was not able to say whether, at the time of the second altercation, Miller would have been under the influence of cannabis. It was one of the possibilities. The ingestion of cannabis could have potentiated the impairment from alcohol in combination with the diazepam and nordiazepam.
[71]There was evidence upon which it may have been open to find that Miller was present with Smith and Betts at premises in Halsey Road, Elizabeth East after the second altercation, drinking a pre-mixed alcoholic drink described as a “cowboy”. Betts, Smith and a third man, who may have been Miller, were at those premises for half an hour or an hour drinking. A witness present at the Halsey Road premises, who was herself drinking, did not consider that either Smith or Betts looked drunk. In the witness’ estimate, they “most probably had a few drinks”. The witness made no observation of the third man, whose face she did not really see and who had been sitting in the dark.
[72]Dr Majumder was asked to assume that Miller had consumed five standard drinks between 11:30pm and 9:20am the following day when the blood sample was taken. On this assumption, Miller’s range of blood alcohol concentration at the time of the second altercation was estimated at between 0.192 and 0.242. If the rate of elimination was calculated as between 0.01 per cent and 0.02 per cent per hour, the range, allowing for the consumption of five standard drinks after 11:00pm, came down to 0.141 to 0.242. At this lower range the effects on the individual would be as described for the higher range but to a lesser degree.
Argument on appeal

Miller’s submission centred on the evidence of Dr Majumder. The critical aspect of Dr Majumder’s evidence relied upon by Miller was her evidence to the effect that the blood alcohol level of Miller may have been somewhere between 0.241 and 0.342 at the time of the incident resulting in Hall’s death and King’s injuries. At these estimated levels she said a person’s decision making would be significantly impaired, as would a person’s ability to concentrate. Dr Majumder opined that Miller’s alcohol levels may have been too high for him to have acted aggressively and the presence of diazepam and cannabis in the blood sample may well have enhanced the effects of alcohol upon him, adding to his confusion and impaired thinking. She said that the effect of alcohol may have been such that he would have been staggering and may have fallen over and, even if he had continued drinking after the second confrontation, his blood alcohol level would likely still be within the range estimated by her.
In light of this evidence, and the fact that no witness purported to identify Miller as one of the persons seen attacking either King or Hall, the appellant submitted there remains a reasonable doubt whether Miller even had the cognitive capacity to reach any agreement, or the ability to foresee what might and did occur sufficient to found any liability on the basis of extended joint enterprise, let alone sufficient proof that he in fact had the requisite state of mind.
The appellant challenged the inferences said to be available on the prosecution case on the basis of the totality of the eyewitness evidence. In particular, Mr Bennett QC submitted that no inference of knowledge on the part of Miller could be drawn from the statement of Presley to the effect of, “Let’s go back and see what these people – go and see what the problem is”. In Mr Bennett’s submission, that statement had five possible meanings; the first, that it was an exploratory statement only; the second, that it revealed an intention to warn the others not to do it again; the third, to warn them not to come back to the area if not residents of the area; the fourth, indicative of an intention to inflict some minor injury; and fifth, of an intention to cause death or really serious injury. Mr Bennett submitted that the fourth and fifth meanings were most unlikely and in any event, on any view of it, the statement did not unambiguously suggest either the fourth or fifth meaning.
Additionally Mr Bennett pointed to the absence of any knowledge on the part of Miller that Betts possessed a knife. My comments in relation to the same submission made on behalf of Presley apply with equal force to this submission made of behalf of Miller.
It was submitted on behalf of the appellant Miller that in light of the combination of all the above matters, there must have been a reasonable doubt on the whole of the evidence and therefore Miller should have been acquitted.
Discussion
The prosecution case against Miller was entirely circumstantial. Much of the evidence referred to in the discussion earlier concerning Presley’s appeal is common to Miller. However, Miller’s position is somewhat different to both Presley and Smith in the sense that no eyewitness attributed any identifiable act or acts to him in the same way as in the case of the other three co-offenders (Betts, Presley and Smith) and, unlike Smith, there was evidence to enable an expert witness in Miller’s case to provide a reasonable estimate of his likely blood alcohol level at the time of the incident. That estimate was considerably higher than in the case of Presley.
Counsel for Miller conceded that the evidence was sufficient to establish beyond reasonable doubt that Miller was present in Grant Street at the time of the attack on Hall and King. However, he submitted that the evidence implicating Miller as a participant in the attack on Hall and King was equivocal and for that reason the jury should not have been satisfied beyond reasonable doubt of his guilt. Counsel pointed to Miller’s proven state of intoxication upon his arrest and his behaviour afterwards to submit that the jury should not have been satisfied that at the time of the attack Miller possessed the requisite state of mind for guilt on the basis of either joint enterprise or extended joint enterprise.
I have considered those submissions carefully against the background of the entire circumstantial case against Miller which included the following:
·    That Miller was present at the time when Presley and Betts returned to Hayles Road after the initial confrontation, Betts with a bloodied lip and Presley in a state of agitation and anger.
·    Miller left Hayles Road with Betts, Smith and Presley, who was armed with a visible weapon, namely a baseball bat.
·    Upon arrival in the laneway at least one other member of the group of four was armed with a shovel.
·    The totality of the eyewitness evidence to the effect that no Aboriginal man in Grant Street at the time of the attack was standing back not participating in the attack on Hall.
·    The blood spatter found on Miller’s shoes which was consistent with being the blood of Hall.
·    The evidence of the crime scene examiner that the blood spatter did not extend beyond one and a half metres from Hall’s body.
·    The evidence of the forensic scientist who opined that absent wind, airborne blood would not travel beyond three metres from the source of the blood.
·    Dr Majumder’s evidence as to the appellant’s blood alcohol level at the relevant time and the effects of intoxication upon a person generally.
·    There was evidence of some drugs in Miller’s blood, however the level of diazepam was low.
Dr Majumder was asked to estimate the likely blood alcohol level of Miller on the assumption that he had consumed a quantity of alcohol after the incident. Those questions were based on the evidence of Ms Wanganeen who described Betts, Smith and another man, who must have been Miller, arriving at her house and staying for about half an hour. She asserted that at that time they were drinking some sort of alcoholic drink, although she did not go so far as to describe Miller doing that.
Dr Majumder’s evidence established that his blood alcohol level may have been between 0.192 and 0.242 at the time of the second altercation in the event that he had consumed five standard drinks between 11.30 pm and 9.20 am the following day when the blood sample was taken.
However, even at those levels, Dr Majumder did not suggest that Miller was incapable of foreseeing or predicting the consequences of his decisions. Her evidence properly went no further than to suggest that a person with the possible blood alcohol level of the appellant may not be able to foresee or predict the consequences of certain decision. Dr Majumder also expressed the views, well known to lay people perhaps, that alcohol can increase aggressive behaviour, cause disinhibition and make an individual more reckless and aggressive.
Dr Majumder’s evidence of the alcohol level she estimated in respect of Miller suggested a level of tolerance, given that he was not unconscious when the police observed him after his arrest. In that respect she expressed the opinion that experienced drinkers have a degree of tolerance to the effects of alcohol and an experienced drinker might be slightly less affected. The possible impacts upon each person are obviously influenced by factors individual to each.
Finally, the estimated blood alcohol level of Miller did not establish that at those levels he was too intoxicated to be aggressive. Dr Majumder expressed the view that one of the matters that may influence the effects of intoxication upon a person is the degree of stimulus to which that person might be subjected and that adrenalin may heighten senses and make a person more alert.
The short duration of the attack on King and Hall is also a relevant matter when considering what role was played by Miller, as part of the group of four who left Hayles Road and returned there after the attack.
At least by the time the group entered the laneway, two of its members were visibly armed, one with a baseball bat and one with a shovel. Presley was visibly agitated. The appellant Miller was one of those present at the time when Presley uttered the comment, “Let’s go back and see what these people – go and see what the problem is”. It is true, as counsel for Miller submitted, that there may be various interpretations of that comment, some of them being innocent. However it was a matter for the jury what inference they drew from the totality of the evidence rather than any particular individual item of evidence. It was not necessary that the jury first be satisfied beyond reasonable doubt of what Presley meant by that comment or what Miller understood by it before drawing an inference that the men intended to commit an assault on the victims. It was the totality of the evidence before the jury from which inferences were to be drawn.
To my mind the fact that the group, some of whom were plainly armed with weapons, immediately upon entering the laneway commenced an altercation without any conversation at all bespeaks an intention on the part of the members of the group to inflict at least some harm on the two men. That is a very important consideration when determining Miller’s state of mind, in particular whether he must have at least contemplated the possibility that members of the group might use the weapons they were carrying to inflict some bodily harm on others. The fact that the group of four made their way so quickly to Grant Street after Betts and Presley had returned from the first altercation is significant.
Nevertheless, given the observations of Miller made by the police a short time after the incident, and his evident state of intoxication at that time, I am left with a doubt about whether the evidence proved beyond reasonable doubt that Miller turned his mind to the critical question whether one or more of his associates might go beyond causing injury to the victims, and intentionally cause really serious bodily harm, having the intention to do so.
In this respect there is a critical distinction to be drawn between the two offences, count 1 of murder and the second court of aggravated causing harm with intent to cause harm. In the case of the second count, it was enough if Miller foresaw the possibility that in carrying out the attack one or more of the others might cause harm with an intention to cause harm. However the state of mind necessary for the crime of murder was that he foresaw the possibility that one or more of the others might go further and cause grievous bodily harm with intention to cause grievous bodily harm.
After conducting my own independent assessment of the evidence against Miller I am satisfied that there was sufficient evidence to support the verdict of guilty on the second count of aggravated causing harm with intent to cause harm. However, I am left with a reasonable doubt as to whether it was open to the jury to find that Miller possessed the necessary state of mind to be found guilty of the crime of murder.
In itself the absence of any eyewitness who identified Miller as one of the persons involved in the hitting and kicking of Hall is not necessarily decisive. The paucity of evidence which points to his participation in the hitting and kicking of Hall is only one factor which I have taken into account. But in the absence of evidence directly implicating Miller as an assailant the focus moves to what he contemplated others in his group might intend and do. In that context, evidence of his intoxication is highly relevant. It is the totality of the evidence, particularly the evidence of Miller’s intoxication, which leaves me with a doubt that it was open to the jury to conclude beyond reasonable doubt that he was a party to more than a plan to cause harm with intent to cause harm.
Contrary to the submissions made by Miller’s counsel, I do not accept that a particularly complex process of reasoning, one beyond the capacity of the intoxicated Miller, was required to make the decision to join the others in causing harm to the victims. In fact, I consider that Miller’s state of intoxication provides an obvious explanation for his decision to join the others in what the jury were entitled to conclude was a revenge attack on Hall and King for the earlier altercation with Betts and Presley. As trial judges frequently instruct juries, a drunken intention is nevertheless an intention.
Notwithstanding my conclusion as to the murder conviction, I am satisfied that it was open to the jury to conclude that Miller was guilty of the manslaughter of Hall. What I have said in relation to residual doubt about his contemplation that grievous bodily harm might be intentionally inflicted by his companions does not mean that there was not sufficient evidence to prove that he must have contemplated that his companions might engage in unlawful and dangerous acts in relation to Hall and King, using one or more weapons.
For these reasons I would quash Miller’s conviction for murder and substitute a verdict of manslaughter. I would dismiss his appeal against conviction in respect of count 2.
The appeal of Wayne Smith
As in the case of both Presley and Miller, Smith too elected not to give evidence at trial.
As in the case of both Presley and Miller, the appellant Smith relied upon the evidence which supported an inference that Smith was as intoxicated as the rest of the group. Accordingly he submitted that the evidence which implicated him in respect of both counts was not sufficient to support a conclusion beyond reasonable doubt that he was in fact party to any joint enterprise with the others or, in the alternative, that it was at least reasonably possible that he did not foresee that one of the group might cause really serious bodily harm with intent to cause serious harm.
Smith also relied on the expert evidence of Dr Majumder in submitting that the extent of alcohol and associated drug intoxication must have impaired his thought processes to the extent that at the very least there remains a reasonable doubt whether Smith comprehended the consequences of any decision made with the others to assault King and Hall.
However, unlike Presley and Miller, Smith conceded that in the event that this Court were to find a reasonable doubt exists as to the formation of the requisite mental element for the crime of murder, it would nevertheless be open to this Court to substitute a verdict of guilty of manslaughter on the basis that the evidence is sufficient to prove that Smith joined an enterprise which involved an unlawful and dangerous assault on Hall causing his death.
Discussion
As is the case in respect of the other two appellants, there is no complaint that the trial Judge’s directions on the topic of intoxication and joint enterprise were deficient either as to the facts or as to the law. The only issue is the sufficiency of the evidence to support the verdicts of guilty.
For the reasons which follow, I do not have the same reservations about the verdicts of guilty in relation to this appellant as I do in the case of Miller.
Unlike the case of Miller, from the totality of the eyewitness evidence I consider it was open to the jury to conclude that Smith was not only present at the attack in Grant Street on King and Hall but that he was one of the people who used a weapon or weapons in the attack.
Ms Bateman described a man who was “a big, stocky boy” who she said was bigger than the two that had been in the street earlier. Ms Turner described a man who was “a lot bigger, he was like fat”. That Smith was much bigger and stockier than any of the other appellants was never disputed.
The evidence against Smith went much further than to establish his mere presence at the scene. Ms Turner described four or five Aboriginal men standing around Hall, kicking him and hitting him. She described a man who was bigger than either of the two (Betts and Presley) involved in the earlier altercation who she saw hit Hall from behind with a long pole with a square on the end. Ms Bateman described the bigger, stockier man as being in possession of a shovel. A large shovel was tendered in evidence. That shovel was forensically examined and blood and hair consistent with Hall’s was found on the blade of the shovel. In addition, Mr Finlay-Smith identified a man who struck Hall with a bottle. Smith’s fingerprints were identified on the bottle found near Hall’s body. The fingerprints were in configurations consistent with someone pouring or drinking from the bottle and holding it upside down.
From the totality of the eyewitness evidence I consider there was sufficient evidence for the jury to conclude beyond reasonable doubt that Smith was one of the men involved in the attack, and one who used at least one weapon.
The evidence of the eyewitnesses who saw the man with the shovel is an important item of circumstantial evidence when assessing the state of mind of Smith. To my mind the carrying of a large weapon such as a shovel into a confrontation bespeaks an intention at the very least to cause really serious harm.
While it may be accepted that Smith was intoxicated, the evidence about his state of intoxication was vague and general. There was no evidence from which any back calculation could be performed as, by the time his blood was sampled, the blood alcohol content was zero. He had a low level of benzodiazepines in the blood consistent with therapeutic doses. Nor was there any evidence to suggest that Smith was staggering, unconscious or swaying about as the group approached or left the scene of the altercation.
Having conducted my own independent assessment of the evidence, I am satisfied for these reasons that it was open for the jury to conclude that Smith was guilty of both offences, either by participating in an agreement with the others to cause grievous bodily harm or, at the very least, being party to an attack while contemplating that one of his group might kill or cause grievous bodily harm to the victims. In my opinion, as the group approached the scene with at least two visible weapons, Smith being identified as the carrier of at least one of those weapons, he must have foreseen the possibility that one or more of the group might use those weapons to inflict really serious bodily harm upon one or more of the victims, while having the necessary intention for murder.
For these reasons I would dismiss the appeal of Smith.
Conclusion
For the reasons I have given I would dismiss the appeals of both Presley Smith. I would allow the appeal of Miller against his conviction for murder. I would quash his conviction for murder and substitute instead a conviction for manslaughter. I would dismiss Miller’s appeal against conviction in respect of count 2.
LOVELL J.
A jury found the appellants guilty of murder. On appeal the appellants submitted that the verdicts of murder were unreasonable as the verdicts were unsupported by the evidence.
The prosecution case alleged each appellant was guilty of murder on the basis that they were party to an agreement to commit a crime, namely assault, and foresaw that death or grievous bodily harm might be occasioned by a co-venturer, acting with a murderous intent and that he, with that awareness, continued to participate in the agreed criminal enterprise.
The question for this Court is whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt of the appellant’s guilt.[13] In Libke v The Queen[14] Hayne J, with whom Gleeson CJ and Heydon J agreed, said that the question for an appellate court in determining whether it was open to a jury to be satisfied of guilt beyond reasonable doubt involves consideration of whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[15] Hayne J said:[16]
It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[13] The Queen v Nguyen (2010) 242 CLR 491 at [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ). See also SKA v The Queen (2011) 243 CLR 400 at [405] – [406] (French CJ, Gummow and Kiefel JJ).
[14] (2007) 230 CLR 559.
[15] (2007) 230 CLR 559 at [596]–[597].
[16] Libke v The Queen (2007) 230 CLR 559 at [113].

It was open to the jury to conclude that Mr Smith hit Mr Hall on the back of the head but that it was not a blow that caused Mr Hall to lose consciousness or indeed even fall to ground. The evidence, if accepted, demonstrated that after being hit on the back of the head Mr Hall ran off. There was some evidence that Mr Smith may have hit Mr Hall in the stomach with the shovel at a later time. That evidence was inconsistent and unreliable.
The events themselves provide definition about the intention of Mr Smith. He had in his hands an item which could have caused very serious injuries. He did not however inflict any. It was, in my view not open to the jury to conclude that Mr Smith himself acted with murderous intent. It was open to the jury to conclude that Mr Smith saw Mr Presley with the baseball bat. The evidence was inconclusive as to when and from where Mr Smith obtained the shovel. There was no evidence that he saw Mr Betts with a knife.
As with Mr Presley and Mr Miller the jury must have had a doubt that Mr Smith turned his mind to what the others, or any one of them, might do. Specifically the jury must have had a doubt that Mr Smith foresaw that death or grievous bodily harm might be occasioned by one of the others acting with a murderous intent and that he, with that awareness, continued to participate in the agreed criminal enterprise.
This doubt must have existed due to a combination of the inconsistencies in the evidence about what actually occurred during the second incident and who performed what act, taken with the undoubted impairment of the thinking and decision making processes of Mr Smith due to his level of intoxication.
I would set aside the murder verdict.
As with Mr Miller and Mr Presley I would enter a verdict of guilty of manslaughter.
Mr Miller
I agree with the reasoning and conclusion of Kelly J. I simply add that the remarks I have made about Mr Presley and Mr Smith apply generally to Mr Miller.
Conclusion
I would allow the appeal of each appellant, set aside each conviction for murder and substitute a verdict of manslaughter.