R v Presley

[2015] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PRESLEY, MILLER & SMITH

[2015] SASCFC 53

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

28 April 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - GENERALLY

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED - LIES, DENIALS ETC

Appeals against convictions.  The appellants and another, Betts, were found guilty by unanimous jury verdicts of the murder of Hall and had either pleaded guilty to or were found guilty of aggravated causing harm with intent to cause harm to King.  The circumstances of the offending were that Betts and Presley had engaged in an altercation with Hall and King at Grant Street in Elizabeth Downs.  They then returned to a nearby property, armed themselves with weapons and, in the company of Miller and Smith, returned to Grant Street to attack Hall and King.  Betts inflicted the fatal stab wound on Hall.  There was direct evidence concerning the two altercations and the conduct of the defendants prior to and following the altercations. 

Whether the Judge’s directions on joint enterprise were inadequate.  Whether the Judge erred in his directions to the jury concerning the elements of murder under the doctrine of extended joint enterprise.  Whether the Judge failed to adequately distinguish between liability for murder by extended joint enterprise and for manslaughter by unlawful and dangerous act.  Whether the Judge gave adequate directions on intoxication.  Whether the Judge’s directions on Presley’s knowledge of the knife used by Betts were inadequate or confusing.    Whether the Judge erred in his direction as to the meaning of grievous bodily harm.  Whether the Judge erred in leaving extended joint enterprise as a basis for liability for murder.  Whether the verdicts were unsafe and unsatisfactory.  Whether the Judge erred by failing to leave an alternative verdict of manslaughter by excessive self defence.    Whether the Judge erred in his directions concerning the lie told by Smith.  Whether the Judge erred in his directions concerning the DNA evidence concerning Smith. 

Held per the Court (dismissing the appeals):

1.  It was not necessary for the jury to be directed on whether there was more than one joint enterprise, the issue was whether Presley was part of a relevant agreement with Betts.  The Judge’s general directions to consider each defendant separately addressed the fact that different people may have had different states of mind. 

2.  For murder under the doctrine of extended joint enterprise, relevant foresight is of someone acting with the necessary intention for murder, namely, either an intent to kill or an intent to cause grievous bodily harm.

3.  It is not necessary for an accused to have foreseen the manner in which the fatal act might be inflicted. 

4.  The Judge correctly directed the jury concerning liability for manslaughter and murder.

5.  The evidence left it open to convict Presley of manslaughter.

6.  Counsel for Presley did not complain of the Judge’s summing up concerning intoxication at trial.  The complaints raised on appeal are raised in terms of complete generality.  The Judge gave both general and specific directions on intoxication.  The Judge’s directions on intoxication cannot be fairly criticised. 

7.  The Judge correctly directed that Presley’s knowledge of the knife was important in making a finding as to his state of mind.

8.  The Judge’s direction to consider each defendant separately addressed the fact that different people may have different states of mind.

9.  The Judge’s directions on the meaning of grievous bodily harm accord with the authorities that consider the meaning of that phrase.

10. The evidence provided a sufficient basis for the jury to find an extended joint enterprise involving Presley.  The bare assertions of insufficiency, inconsistency and confusion do not make out a basis for suggesting there was any error on the part of the Judge in his decision to leave extended joint enterprise as a matter for the jury. 

11. The evidence allowed the jury to conclude that Presley was present and participated in the attack on Mr Hall with the necessary criminal intent. 

12. It was open to the jury to find that Miller was part of a group who had at least agreed to cause grievous bodily harm to others. 

13. It was open to the jury to conclude that Miller was at least party to a plan to assault and that he foresaw the possibility that a party to the plan might act with intent to cause grievous bodily harm.

14. There was sufficient evidence on which a jury could convict Miller based on extended joint enterprise and the Judge’s general and specific directions on this topic were appropriate.

15. The evidence did not warrant leaving manslaughter by excessive self defence to the jury in respect to Miller. 

16. There is no basis to establish that the verdicts are unsafe and unsatisfactory in respect to Miller. 

17. It was open to the jury to find that the lie told by Smith was deliberately told and was relevant to Smith’s presence at and participation in the incident the subject of the charges.  The Judge’s direction and redirection made it clear that the jury would understand that, if they treated the lie as evidence of guilt, it showed no more than presence and participation in some joint enterprise – it did not say anything about what the joint enterprise was or what Smith’s state of mind might have been.  The directions did not cast an onus on Smith to have given evidence. 

18. The jury were appropriately directed on the DNA evidence linking Smith with the attack.  The DNA evidence left it open to conclude that Smith had held the bottle as a weapon in the attack. 

19. The evidence against Smith does not support a finding that the verdicts were unsafe and unsatisfactory.

Criminal Law Consolidation Act 1935 (SA) s 11 and s 24(1), referred to.
Gillard v The Queen (2003) 219 CLR 1; McAuliffe v The Queen (1995) 183 CLR 108; R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502; Clayton v The Queen (2006) 81 ALJR 439; R v Aziz [1982] 2 NSWLR 322; R v Taufahema (2007) 228 CLR 232; R v Jones (2006) 161 A Crim R 511; R v Aljaroudi; R v Abdullah; R v El-Awar [2012] SASCFC 117; R v O’Flaherty, Ryan and Toussaint [2004] EWCA Crim 526; R v O’Connor (1980) 146 CLR 64; R v Blevins (1988) 48 SASR 65; Alford v Magee (1952) 85 CLR 437; Zoneff v The Queen (2000) 200 CLR 234; The Queen v Shueard (1972) 4 SASR 36; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Gilbert v The Queen (2000) 201 CLR 414; R v Carbone (No 2) (1976) 14 SASR 280; R v Barlow (1997) 188 CLR 1; Huynh v The Queen (2013) 87 ALJR 434; R v Wooley, Wooley, Whitney & Rayment (1989) 42 A Crim R 418; Wilson v The Queen (1992) 174 CLR 313; R v Duong (2011) 110 SASR 296; R v Smith [1961] AC 290; Edwards v The Queen (1993) 178 CLR 193; Harris v The Queen (1990) 55 SASR 321, considered.

R v PRESLEY, MILLER & SMITH
[2015] SASCFC 53

Court of Criminal Appeal:  Gray, Sulan and Blue JJ

THE COURT.

1. These are appeals against convictions.

2. At trial, Joshua Juan Betts and the appellants, Johnas Jerome Presley, Everard John Miller and Wayne Douglas Smith, were found guilty by jury verdict of the murder of Clifford Hall.[1]  Betts, Miller and Smith were also found guilty of aggravated causing harm with intent to cause harm to Wayne King.[2]  All verdicts were unanimous.  Presley had pleaded guilty to the offending against Mr King before the jury at his arraignment.

   [1]    Criminal Law Consolidation Act 1935 (SA) section 11.

   [2]    Criminal Law Consolidation Act 1935 (SA) section 24(1).

   The Prosecution Case

3. The incident the subject of the charges occurred at about 11.00 pm on 12 December 2012 at Grant Street, Elizabeth Park.  Mr Hall resided at 17 Grant Street.  He was assaulted on Grant Street near his home by a group of men of Aboriginal appearance.  Those men included Betts, Presley, Miller and Smith.  The defendants had all arrived at Grant Street from 33 Hayles Road, Elizabeth Park, a nearby property. 

4. A number of weapons were used to assault Mr Hall.  He was stabbed with a knife to his back, penetrating his chest cavity, lung and heart.  This wound was fatal.  It was not disputed at trial that the wound was inflicted by Betts.  Other weapons used by the group were a shovel and a bottle.

5. Mr King, a friend and neighbour of Mr Hall, was present at Grant Street at the time of the attack.  He was assaulted by members of the group of men responsible for the attack on Mr Hall.  He was assaulted with, at least, a metal baseball bat held by Presley and was kicked and punched. 

6. In respect of the charge of murder, the prosecution case was that Betts, Presley, Miller and Smith were part of a joint enterprise that had as its object, or within its contemplation, an attack on Mr Hall with weapons accompanied by an intention to cause grievous bodily harm. 

7. In respect of the charge of assault, the prosecution case was that Miller, Smith and Betts were engaged in a joint criminal enterprise with Presley that had as its object an attack on Mr King with weapons accompanied by an intention to cause harm. 

8. The sequence of events leading to the offences was that there had been an earlier altercation between 10.30 pm and 11.00 pm on Grant Street between Betts and Presley, on one hand, and Mr Hall and Mr King, on the other.  Miller and Smith were not present at that time.  Presley’s then girlfriend, Amii Turner, Betts and Presley left 33 Hayles Road in search of cannabis.  Smith and Miller remained at 33 Hayles Road.  As Amii Turner, Betts and Presley were walking back toward Hayles Road, Betts urinated against the fence by 12 Grant Street. 

9. Mr Hall and Mr King had been sitting together on Mr King’s front porch.  Mr Hall approached Betts and Presley at the entrance to the laneway and indicated his displeasure at them urinating in public.  Mr Hall was joined by Mr King and neighbours of Mr Hall: Anita Bateman, who was Mr Hall’s former domestic partner; Todd Finlay-Smith and his partner, Kalena Oldenhamson; and Pamela Turner.  Presley told Mr Hall that he and Betts were only seeking to purchase cannabis.  He waved $25.00 in the air.  Mr Hall expressed his disapproval with their attempt to obtain cannabis in his street.  Although the accounts of what was said between Mr Hall, Betts and Presley differed, it is clear that voices were raised and abuse exchanged between Betts and Presley, on one hand, and Mr Hall, on the other.  Betts was punched to the mouth and Mr Hall was seen to push one of the Aboriginal men. 

10. Betts and Presley returned to 33 Hayles Road.  Amii Turner had returned shortly before.  She saw them return and then blacked out.  Gary Willis was present at 33 Hayles Road when they returned.  He estimated that Betts, Presley and Amii Turner had been gone for an hour and a half at most.  He heard Betts say that he had been struck by three white fellas who jumped him in the alleyway.  Betts had a bloodied lip.  Presley said “let’s go back and see what these people - go and see what the problem is”.  Mr Willis saw Presley, who was carrying a baseball bat, Betts, Miller and Smith leave the premises.  He followed them in his motor vehicle and saw them enter the laneway.  He then returned to 33 Hayles Road. 

11. The group at Grant Street was still gathered at the entrance to the laneway following the initial altercation with Betts and Presley.  Mr Hall had gone some way into the laneway upon Betts and Presley departing. 

12. Estimates varied concerning the time that passed between the departure of Betts and Presley after the initial altercation and the return of the defendants down the laneway to Grant Street.  Mr King thought it was approximately 20 minutes; Ms Bateman and Ms Oldenhamson thought it was approximately 5 to 10 minutes; Pamela Turner estimated that it was approximately 5 minutes; and Mr Finlay-Smith estimated it was about 3 minutes. 

13. Mr King, who was still in the laneway, first heard what he described as “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 figures he saw in the laneway.  Mr Hall, who was also still in the laneway, yelled out “run they’ve got weapons”.  Mr King ran back toward his house.  As he ran, his left shoulder was struck by something solid from behind.  He turned around and, while running backwards, saw the two men he had seen earlier, namely Betts and Presley.  Both men had something in their hands and struck him to the legs, ribs and arms.  One took a swing toward his head.  Mr King raised his arm to protect his head and was struck to his left arm by the taller of the two men – on the prosecution case, Presley.  Mr King said that the object that hit him felt like a baseball bat.  He fell to the ground and blacked out.  He sustained a fracture to the upper arm which required surgery. 

14. Ms Bateman observed the attack on both Mr Hall and Mr King.  She saw a group of five or six Aboriginal people walking through the laneway.  She described a “big guy in front carrying a shovel” – on the prosecution case, Smith.  Ms Bateman fled inside and retrieved a homemade cricket bat.  At that time, Mr Hall was running past 12 Grant Street.  When Ms Bateman returned to Grant Street she saw two men running after Mr King.  She next saw Mr King on the ground by the big tree outside her house being kicked and hit by two men.  One of them had a crucifix on his face.  This was Betts.  Both men had something in their hands, though Ms Bateman could not identify the objects.  They were hitting Mr King constantly.  The larger man with the shovel then approached Ms Bateman and asked if she “wanted some as well”.  At that point, Ms Bateman observed Mr Hall on the road by 11 Grant Street.  There were about three or four people around him hitting and kicking him. 

15. Pamela Turner lived at 14 Grant Street.  She observed six to eight Aboriginal men run out of the laneway.  She saw Mr Hall pick up a garbage bin and attempt to throw it at them, although he was prevented from doing so by one of the men who hit him from behind.  That man had a long pole with a square bit on the top.  He was holding it straight up in one hand.  She observed the man moving that object overhead and bringing it down on to Mr Hall’s head in a chopping motion.  Mr Hall had an injury to the head consistent with a blow from a shovel.  She saw Mr Hall drop the bin.  She saw that man kick Mr Hall to the jaw when he was on the ground.  She saw a “hand coming at him like at the back of him and hitting him” to the back just below the shoulder blade.  It was the prosecution case that this was the fatal blow.  She went to call the police and next saw Mr Hall lying on the ground.  She described people around Mr Hall kicking and hitting him to the jaw, left side and right side.  She observed the man with the pole hit Mr Hall with that object and stomp on Mr Hall’s stomach.  At that time, there were four or five Aboriginal men around Mr Hall. 

16. Ms Oldenhamson observed five or six men come down the laneway.  Mr Hall and Mr King grabbed rubbish bins and held them in front of them.  At that time, five or six people surrounded them.  Ms Oldenhamson was distracted at times by taking her youngest child inside; however, she observed Mr Hall on the ground being kicked by five or six men. 

17. Mr Finlay-Smith was in his front yard and saw five or six people in the laneway.  He saw one man holding a shovel, another holding a bat and another holding a long neck bottle.  Mr Hall was dragged by two men toward the middle of the road.  One of the men held a shovel and the other held a silver pole, most likely the baseball bat.  Mr Finlay-Smith saw a man hit Mr Hall across the head with the shovel.  Mr Hall went to ground and Mr Finlay-Smith observed he was bashed by about four people, one of whom struck Mr Hall with a bottle. 

18. Mr Willis, who had returned to 33 Hayles Road, saw Betts, Presley, Miller and Smith return to the premises together.  One of the men was carrying the baseball bat.  Mr Willis recalled one of them saying “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 51 Northampton Crescent, Elizabeth East, the address of his mother in law, Mavis Betts. 

19. When Amii Turner woke after blacking out, she saw that Betts, Presley, Miller and Smith were all at 33 Hales Road.  She described Presley and Betts “going off their heads at each other” and screaming. 

20. Presley remained at 33 Hayles Road.  He was seen by Senior Constable Bos shortly after 11.30 pm at the front of the property.  He appeared to be in an agitated state; he was pacing and making comments such as “you’re fucked, dog” and “you dog”.  He was arrested at 33 Hayles Road by Detective Brevet Sergeant McCaffrey at approximately 12.25 am. 

21. Betts and Miller were first seen by Constable Roberts at about 1.35 am on Talbot Street, Elizabeth East.  Both were arrested nearby at 51 Northampton Crescent at about 1.52 am. 

22. Smith was first seen at 2.34 am travelling on Talbot Street toward Northampton Crescent.  He identified himself to police and was allowed to leave.  At about 5.15 am, Smith was seen by police asleep in a green Hyundai at 51 Northampton Crescent.  He said that he had been drinking at Ricky Warrior’s house nearby from 6.30 pm to 11.30 pm the previous evening.  There was no dispute that this was false.  He was arrested at about 5.45 pm on 13 December 2012 at 4 King Street, Davoren Park. 

23. No defendant gave evidence at trial.  Betts and Presley answered questions when interviewed by police.  The jury was directed that the statements made in those interviews were only admissible against the makers of the statements. 

24. Betts, during an interview on the morning of 13 December 2012, admitted to using a knife, but said that there was only one incident and that he used the knife defensively.

25. On the morning of his arrest on 13 December 2012, Presley did not participate in an interview.  On 22 December 2012, he was interviewed at his request.  He said that he obtained a baseball bat after the initial altercation, that he ran or jogged back to the scene and that Smith, Betts and another man he did not know - on the prosecution case, Miller - were with him.  He said that Smith had a cricket bat, and that he thought the man he did not know had a shovel and that Betts had a knife.  He admitted to striking one man to the elbow, but said he did no more than that.  Further, he said that he did not see Betts stab the person who was on the ground.

1. As earlier noted, there was evidence that at least four weapons were used by those attacking Mr Hall and Mr King: the knife that Betts used to stab Mr Hall; the baseball bat, which had also been described as a pole, that Presley admitted having obtained from Hayles Road and then using to attack Mr King, but which on the prosecution case had also been used on Mr Hall; and a shovel and a bottle that were both used to attack, at least, Mr Hall.

2. Upon his arrest, Betts was taken by police to the Elizabeth Police Station.  Betts then directed police to premises at 30 Butterfield Road, Elizabeth Park, which is parallel to Grant Street and runs off Hayles Road.  Betts directed police to a drain at the rear of the premises.  A knife was located inside the drain.  The length of the knife was 332 millimetres, with the length of the blade being 202 millimetres.  Andrew James Donnelly, a forensic scientist, observed blood-like staining on the blade of that knife.  Testing undertaken on that staining disclosed a blood profile which matched that of Mr Hall. 

3. A shovel was seized from the rear yard of 30 Butterfield Road.  Blood-like staining was observed on the front and rear of the blade.  Hair and putative skin were observed on the leading edge of the blade.  A DNA profile matching that of Mr Hall was obtained from the staining.  There was insufficient DNA for profiling the swabs of the handle or shaft.

4. An empty “Passion Pop” bottle was found at the scene when the police arrived at Grant Street at about 11.03 pm.  Blood-like stains were observed near the neck label of the bottle.  A swab of the mouth area of the bottle contained DNA consistent with that of Betts.  Smith’s fingerprints were found on the bottle.  The location of the fingerprints was consistent with the bottle having been held by Smith both upside down and upright. 

5. A baseball bat was seized from the lounge room of 33 Hayles Road.  A swab obtained from the handle yielded a mixed DNA profile of four contributors.  Betts, Miller and Smith were excluded from that profile.  Presley was not excluded.  However, the result did not positively support him as having been a contributor.  A sample taken from the area at the end of the baseball bat gave a weak positive reaction to a presumptive test for blood but yielded insufficient DNA for profiling. 

6. A triangular, 1.9 kilogram piece of concrete was removed from Grant Street in close proximity to the deceased.  A swab of two blood-like spots on one edge yielded a single source DNA profile matching that of Mr Hall.  Ms Bateman said that a concrete block was thrown from the direction of the laneway toward her during the attack on Mr Hall and Mr King. 

7. At trial, during cross-examination of relevant witnesses, there was no dispute by the appellants with respect to the following matters concerning the initial altercation and the second altercation:

   -there were two incidents;

   -Betts and Presley were involved in the initial altercation with Mr Hall and Mr King;

   -following the initial altercation, Betts and Presley returned to 33 Hayles Road;

   -upon their return to 33 Hayles Road after the initial incident, Presley obtained a baseball bat and stated they should “go and see what the problem was”;

   -Betts and the appellants left 33 Hayles Road together;

   -at least four Aboriginal men, including Betts and Presley, were present during the attack on Mr Hall and Mr King;

   -a knife, shovel, baseball bat and bottle were taken to Grant Street; and

   -Betts stabbed Mr Hall with a knife that was 332 millimetres long with a blade that was 202 millimetres long.

8. There was also no dispute by the appellants with the following matters which occurred after the second altercation:

   -Betts and the appellants returned to 33 Hayles Road together after the second altercation;

   -the baseball bat was seen by Mr Willis upon their return from the second altercation, although he was not sure who was carrying it;

   -on their return to 33 Hayles Road following the second altercation, Betts and Presley were “going off their heads”;

   -Betts said “I stabbed him”;

   -the knife was disposed of at the rear of 30 Butterfield Road, which is where the shovel was located;

   -after they returned to Hayles Road, Mr Willis drove Betts, Miller and Smith to 51 Northhampton Street; and

   -Smith’s statement to police that he had been drinking at Mr Warrior’s place on the night of the attack was false.

9. Having regard to the foregoing, it is convenient to consider the prosecution case against each appellant. 

   Case Against Presley

10. Presley, when interviewed by police, admitted attending Grant Street armed with a baseball bat and in the company of at least Smith, whom he said was also armed.  He said that he ran or jogged to the scene and that he used the baseball bat when he arrived.  His only reason to return to the scene armed was to extract retribution for the earlier incident.  On the evidence, it was open to conclude that Presley returned with Miller, Betts and Smith, that each of Betts and Smith was also armed, and that each of Presley, Betts and Smith used a weapon at the scene. 

11. The prosecution case was that Presley hit Mr King with the baseball bat – to which he pleaded guilty – and joined in the attack on Mr Hall, hitting him with the baseball bat. 

12. Ms Bateman identified Presley from a photograph array as having been on Grant Street.  She recognised one of the three men hitting and kicking Mr Hall as one of the men she had seen earlier, namely the man wearing a basketball top and three-quarter length pants who had not been urinating.  That man had something in his hands although she could not identify the object. 

13. Pamela Turner said that a man wearing silver shorts but no top kicked Mr Hall during the assault.  She described that man as having a silver pole and hitting Mr Hall with the pole to the stomach as well as stomping on Mr Hall’s stomach. 

14. At about 11.30 pm, when police first arrived at 33 Hayles Road, Presley was observed by Senior Constable Bos not to be wearing a top.  A pair of grey shorts was later seized from him. 

15. Bruising to Mr Hall’s left arm in a tramline pattern was consistent with his having been struck with a long, thin object such as a pole or baseball bat. 

16. Many blood-like spots were observed on the outer rear left leg of the grey shorts seized from Presley.  That blood was matched to that of Mr Hall.  Expert evidence was led that the nature and orientation of the stains placed Presley in close proximity to the attack upon Mr Hall, assuming that he was wearing the shorts at the time. 

    Case Against Miller

17. The prosecution case was that Miller attended the second confrontation with others who were armed, at least in part, with weapons that were too large to be concealed and who were obviously intent on an attack.  The prosecution contended that Miller was part of the group of men surrounding Mr Hall while he was being bashed. 

18. The prosecution relied upon the forensic evidence of Dr Donnelly relating to sneakers Miller was wearing at the time of his arrest.  Blood-like spots were observed on both the left and right sneaker.  DNA analysis matched that blood to Mr Hall.  Dr Donnelly gave evidence with respect to the pattern of the blood on those shoes.  He said that the pattern of staining did not accord with what he would expect to see had Miller’s right shoe stepped into a pool of blood.  The prosecution also relied on the observations at the scene by Brevet Sergeant McKenzie that the blood spatter extended only one and a half metres from where Mr Hall was lying.

19. Mr Willis gave evidence that Miller was present at 33 Hayles Road on the night and left at the same time as Presley, who was armed with a baseball bat, Smith and Betts.  There was evidence that the four men returned together.  One of the men was carrying a baseball bat.

    Case Against Smith

20. The prosecution case was that Smith was present with others who were armed, at least in part, with weapons that were not concealed, and intent on attack.  Further, that Smith hit Mr Hall with a shovel and a bottle. 

21. The evidence of Mr Willis was that Smith left with Presley, Miller and Betts and later returned with them.  Pamela Turner said that an Aboriginal man with a much bigger build than the others was carrying a “long pole with a square bit on the top”.  This, on the prosecution case, was the shovel.  She observed that the man hit Mr Hall over the back of the head with that weapon.  She further observed the man kick Mr Hall to the jaw when he was on the ground. 

22. Mr Finlay-Smith observed that one of the men present had what looked like a green long neck bottle.  He saw the deceased being hit with that bottle.  The DNA evidence and fingerprint analysis referred to earlier in these reasons connected Smith to this item. 

23. When Smith left Hayles Road after the incident the subject of the charges, he did so with Betts and Miller.

24. Smith lied to the police about his whereabouts at the time of the incident.  This lie was capable of being used as an item of circumstantial evidence of his presence and participation in the attack. 

    The Defence Cases at Trial

    Betts

25. Betts did not give evidence.

26. Betts when interviewed by the police claimed that there had only been a single incident.  He claimed that he was the subject of an attack and that, by chance, he had a knife and used it against Mr Hall in self defence. 

27. Betts has not sought to appeal his conviction for murder or his conviction for aggravated causing harm with intent to cause harm. 

    Presley

28. Presley did not give evidence. 

29. Presley was interviewed by the police.  During the interview, he spoke of the first incident in Grant Street, that he had left, obtained a baseball bat from Hayles Road and returned to Grant Street with another or others.  Having returned, he struck Mr King.  He pleaded guilty to the offence of aggravated causing harm with intent to cause harm. 

30. His position at trial was that he was not a party to any relevant joint enterprise.

    Miller

31. Miller did not give evidence.

32. At trial, counsel for Miller conceded during his closing address that Miller was present at the time of the second confrontation.  Miller’s approach at trial was that the evidence led by the prosecution did not establish that he was physically involved in the second confrontation or that he was a party to any relevant joint enterprise. 

    Smith

33. Smith did not give evidence.

34. Counsel for Smith, although not conceding that Smith was present at the second incident, left open to the jury whether they may conclude that he was present.  The approach of counsel for Smith was to submit to the jury that the prosecution evidence did not establish that he was physically involved in the second confrontation, or that he was a party to any relevant joint enterprise. 

    The Appeal – General Observations

35. Although it is necessary for this Court to consider separately each of the appeals by Presley, Miller and Smith, it is to be observed that there is a degree of overlap in the grounds advanced by each appellant.  There is some commonality in the complaints concerning the directions regarding joint enterprise and extended joint enterprise.  All appellants complain about the directions with respect to manslaughter.  All appellants complain that the verdicts are unsafe and unsatisfactory. 

    Joint Enterprise – General Principles

36. In its simplest application, a joint criminal enterprise exists when a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime and participate together in pursuance of that agreement.  The understanding or arrangement need not be express and its existence may be inferred from all the circumstances.  Participation may involve committing the agreed crime itself or being present at the time when the crime is committed and by intentionally assisting or encouraging another participant to commit the crime.  If one or another of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty regardless of the part played by each of them.[3]

    [3]    Gillardv The Queen (2003) 219 CLR 1, [110]. See also McAuliffe v The Queen (1995) 183 CLR 108, 113-4.

    Extended Joint Enterprise – General Principles

37. If a person reaches an agreement to commit a crime and foresees as a possible incident that another crime might be committed and continues to participate in the agreed crime knowing of that possibility, then that person is as much a party to the crime that he has foreseen as he is a party to the agreed crime.[4]

    [4]    McAuliffe v The Queen (1995) 183 CLR 108, 117-8; Gillardv The Queen (2003) 219 CLR 1, [111]-[112].

38. For any party to be guilty of murder through extended joint enterprise they must foresee as a possible incident of their arrangement that another party to the agreement might act with intent to kill or inflict grievous bodily harm.[5]

    [5]    R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502, 519.

39. The principles of extended joint enterprise were summarised in the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan, Haydon and Crennan JJ in Clayton:[6]

    A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies.  If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight.  That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder.

    [Footnote omitted.]

    [6]    Clayton v The Queen (2006) 81 ALJR 439, [17].

40. In Bosworth, Duggan J considered the relevant authorities and said:[7]

    These authorities reflect the rationale for extending liability for the crime of murder in such circumstances.  Liability is imputed because the commission of an offence outside the scope of the common purpose is contemplated as a possibility in the carrying out of the enterprise.  Contemplation for this purpose requires advertence to the possibility that the actor will carry out the act accompanied by the necessary intention to commit the offence.  The intention for murder relevant to this case is the intention to cause grievous bodily harm.  It is of significance that in McAuliffe’s case, the court quoted with apparent approval the formula for jury directions suggested by Sir Robin Cooke in the advice prepared by him in Chan Wing-Siu v The Queen:

    ... did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm.

    If no weapon is involved, the direction may be adapted accordingly, but the requirement for contemplation of the possibility of the act being accompanied by the intention to cause really serious bodily harm would remain.

    [Footnotes and citations omitted.]

    [7]    R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502, [74]-[75].

    Unreasonable or Cannot be Supported Having Regard to the Evidence - Principles

41. To establish that a verdict is unreasonable, or that it cannot be supported by the evidence, an appellant must do more than establish that the evidence is open to criticism.[8]

    [8]    The Queen v Shueard (1972) 4 SASR 36, 39.

42. This Court must consider whether, on the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt of an appellant’s guilt.[9]  An appellant must establish that the jury must have entertained a doubt about guilt.  It is not sufficient to establish that there was material before the jury which might have been taken by the jury to preclude satisfaction of guilt beyond a reasonable doubt.[10]

    [9]    M v The Queen (1994) 181 CLR 487, 492-3.

    [10]   Libke v The Queen (2007) 230 CLR 559, [113].

43. It is important to recall that the jury is entrusted with the primary responsibility of determining guilt or innocence, and that the jury in making that determination had the benefit of seeing and hearing the witnesses.[11]

    [11]   M v The Queen (1994) 181 CLR 487, 492-3.

    The Relevance of Directions on Manslaughter when the Jury Convicted of Murder

44. Manslaughter by unlawful and dangerous act was left to the jury as an alternative verdict.  Smith and Miller contend that the directions with respect to manslaughter were erroneous.  First, that unlawful and dangerous act manslaughter was not the only type of manslaughter open on the facts.  Second, that the directions that were given contained errors. 

45. Each of the specific complaints will be addressed later in these reasons.  It is to be noted that the jury found the appellants guilty of murder and were directed to consider that charge first. 

46. In light of the High Court’s judgments in Gilbert[12] and Gillard,[13] cases in which manslaughter was open on the facts but not left to the jury, it is necessary to consider whether it is open to the Director to argue that any error in failing to leave another path to manslaughter open on the facts is irrelevant and, further, that any error in the directions on manslaughter by unlawful and dangerous act is irrelevant.  He observed that that there was no complaint at trial about this direction.[14]

    [12]   Gilbert v The Queen (2000) 201 CLR 414.

    [13]   Gillard v The Queen (2003) 219 CLR 1.

    [14]   R v Aziz [1982] 2 NSWLR 322, 331; R v Carbone (No 2) (1976) 14 SASR 280, 287-8.

47. The Director did not advance either argument as he did not submit that the principle in the two High Court judgments is restricted to only those cases in which manslaughter is not left at all.  This is so as the failure to leave an alternative verdict which is open on the facts or to misdirect with respect to an alternative that is left to the jury is an error of law.  It is for this reason that in each case the proviso was considered and found in the particular circumstances of each case not to allow the appeals to be dismissed.

48. The Director contended under each relevant ground that the additional type of manslaughter identified by the appellants, namely manslaughter by excessive self defence, was not open or, alternatively, in the present proceeding, was no different to the type that was left.  Further, it was contended that there was no error adverse to any appellant in the directions that were given with respect to manslaughter by unlawful and dangerous act.

    The Appeal – Presley

    Extended Joint Enterprise Murder

49. Counsel for Presley first submitted that the trial Judge erred in his oral directions in his description of the elements of murder under the doctrine of extended joint enterprise.  It was submitted that only a participant to a joint enterprise who actually foresees a murder as a possible incidental crime is liable for murder under extended joint enterprise.  It was said that the defendant must have foresight of a possibility that the victim be killed with murderous intent and not merely that the victim might sustain really serious harm.  Counsel asserted that High Court authority made good this proposition and he referred in particular to Taufahema,[15] Barlow[16] and Clayton.[17]

    [15]   R v Taufahema (2007) 228 CLR 232.

    [16]   R v Barlow (1997) 188 CLR 1.

    [17]   Clayton v The Queen (2006) 81 ALJR 439.

50. The Director contended that this submission misunderstood the authorities that speak of a requirement to foresee that another might act with murderous intent.  The Director submitted that such statements are a reference not to foresight of someone acting with intent to kill, but to someone acting with the necessary intention for murder, namely either an intent to kill or an intent to cause grievous bodily harm.  In the Director’s submission, this was made plain by the High Court in Clayton, where the plurality observed:[18]

    A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder.

    [Footnote omitted.  Original emphasis.]

    [18]   Clayton v The Queen (2006) 81 ALJR 439, [17].

1. In our view, the Director’s submission is correct.  Relevant foresight is of someone acting with the necessary intention for murder, namely, either an intent to kill or an intent to cause grievous bodily harm.

2. In McAuliffe, the High Court said:[19]

   For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention ‑ that is, a common purpose ‑ to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.

   [19]   McAuliffe v The Queen (1995) 183 CLR 108, 118.

3. In Jones, Duggan J, with whom Bleby and Anderson JJ agreed, said:[20]

   By way of summary, the following elements would have to be proved in order to establish liability by way of extended joint criminal enterprise:

   1 The accused reached an understanding or arrangement with another person or persons to assault the deceased; that is, to apply force unlawfully to the deceased.

   2 Pursuant to the understanding or agreement, a person who was party to the understanding or arrangement (“the actor”) assaulted the deceased.

   3 While assaulting the deceased, the actor murdered the deceased. This requires proof against the actor of the elements of murder previously explained.

   4 At the time the accused reached the understanding or arrangement with the other person or persons to assault the deceased, the accused foresaw the possibility that, in the process of assaulting the deceased, a person who was party to the understanding or arrangement would murder the deceased. This requires proof that the accused foresaw the possibility that a person who was party to the understanding or arrangement would unlawfully kill the deceased and would do so with an intention to kill the deceased or to cause the deceased really serious bodily harm.

   [20]   R v Jones (2006) 161 A Crim R 511, [188].

4. Counsel for Presley submitted that Presley must be shown by the prosecution to have foreseen the full actus reus.  This issue was addressed by Duggan J in Bosworth, Gibbins, Nance and Richards,[21] where his Honour concluded that knowledge of the particular manner in which harm was to have been caused is not essential.  In particular, Duggan J remarked:[22]

   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.]

   [21]   R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502.

   [22]   R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502, [82].

5. The Director drew attention to the High Court’s decision in Huynh,[23] in which the Court held that knowledge or foresight of how the fatal act might be inflicted is not required.  The Court further observed that the direction given at trial, which required the agreement to kill or to cause really serious bodily harm to include the use of a knife or similarly bladed weapon, was favourable to the appellants.[24]

   [23]   Huynh v The Queen (2013) 87 ALJR 434. See also R v Aljaroudi; R v Abdullah; R v El-Awar [2012] SASCFC 117; R v Wooley, Wooley, Whitney & Rayment (1989) 42 A Crim R 418, 437-8; R v O’Flaherty, Ryan and Toussaint [2004] EWCA Crim 526.

   [24]   Huynh v The Queen (2013) 87 ALJR 434, [7].

   Manslaughter by Unlawful and Dangerous Act

6. Counsel for Presley complained of the Judge’s failure to adequately direct the jury as to all available avenues of liability for manslaughter and, in particular, failed to direct the jury that liability for manslaughter was available as a verdict in relation to Presley in the event that they found Betts liable for murder.  A further aspect of this submission was that the Judge failed to adequately distinguish between liability for murder by extended joint criminal enterprise and liability for manslaughter by unlawful and dangerous act.  Counsel contended that, if Presley was a party to an assault, he did not foresee that another might act with intent to kill or cause grievous bodily harm, and at most foresaw an accidental death.  As a consequence, the only basis on which he might be found guilty of manslaughter was by an unlawful and dangerous act. 

7. The elements to be established for the crime of manslaughter by unlawful and dangerous act were addressed by the High Court in Wilson and may be summarised as follows:[25]

   -the act causing death is a conscious and voluntary act, that is, willed and not accidental;

   -the act is unlawful and not performed in self-defence; and

   -the act is dangerous in the sense that a reasonable person in the position of the accused would have realised that the act exposed the deceased to an appreciable risk of serious injury or harm.

   A person who is a party to a joint enterprise will need to be party to an act, in the present proceeding an assault, that the jury determines to be both unlawful and dangerous.

   [25]   Wilson v The Queen (1992) 174 CLR 313.

8. In the submission of the Director, the trial Judge directed the jury in an entirely appropriate manner.  The substance of those directions was that the prosecution must prove each of the following matters beyond reasonable doubt:

   -that Presley came to an agreement or understanding with another or others at least including Betts to assault the men in Grant Street, that is, to apply force unlawfully to any of those men in Grant Street;

   -that the assault to which Presley agreed was dangerous in the sense that a reasonable person in the position of Presley would have realised that it would expose one of those men in Grant Street to an appreciable risk of serious injury or harm;

   -that in the course of the assault, Betts, who was a party to the arrangement or understanding, killed Mr Hall; and

   -that the killing of Mr Hall was unlawful, that is, not in lawful self-defence.

   These directions were given both orally and in writing. 

9. In our view, the submission of the Director should be accepted.

10. In the event of a guilty verdict being returned against Betts, it was still open to the jury to convict Presley of the crime of manslaughter.  It is important to recall that the Judge directed the jury to give separate consideration to each accused and the verdicts for each did not need to be the same:

    All the accused are jointly charged. It is very important in these circumstances to remind you that you must consider the charges that each of the accused faces separately. It goes without saying that you need to go through the process separately for each of the accused. You must consider the evidence against each of the accused separately from the evidence against all the other accused.

    In many cases the evidence in a trial is common to all accused and intertwined. I direct you that does not mean that the fate of each accused rises and falls together, or that the charges rise or fall together. You must give separate consideration to the case against each particular accused and you must consider separately the accused’s answer through their counsel to the charges. You must also look at each count, that is, each charge separately because one accused may be guilty of one charge and not guilty of the other. Equally one accused may be guilty of one offence and another accused not guilty of the same offence. One does not follow from the other and vice versa. Because an accused may be guilty or not guilty of one of the particular charges, it does not necessarily mean that he is guilty or not guilty of the other charge. It may be that that follows, and it may be that that is the case, but it does not necessarily have to be. It is a matter for you to decide in looking at all the facts and I direct you that you must consider the charge or charges against each accused separately, looking at their responsibility and look at each charge separately. They do not all rise or fall together.

11. The Judge’s direction in respect to the alternative verdict of manslaughter in relation to joint enterprise was in the following terms:

    I now want to turn to the alternative verdict of manslaughter in relation to joint enterprise. Just as manslaughter is available as an automatic alternative to murder in the case of an accused who actually kills the victim, manslaughter is available as an automatic alternative verdict where an accused did not inflict the fatal wound and is charged with murder. That occurs in this way.

    First, if two or more persons come to an agreement or understanding that together they will inflict an unlawful and dangerous assault upon another person and while that agreement or understanding is still on foot, and in accordance with that agreement or understanding, one of them carries out the intended dangerous assault causing the death of the deceased, all are guilty of manslaughter regardless of what part each played in the dangerous assault. In order to prove that a particular accused is guilty of manslaughter on this basis the prosecution must prove the following matters beyond reasonable doubt, again this is set out in the aide-mémoire:

    (1)     that the accused came to an agreement or understanding with another or others at least including Mr Betts to assault the men in Grant Street, that is to apply force unlawfully to any of those men in Grant Street;

    (2)     that the assault to which the accused agreed was dangerous in the sense that a reasonable person in the position of the accused would have realised that it would expose one of those men in Grant Street to an appreciable risk of serious injury or harm;

    (3)     that in the course of the assault one of the parties to the arrangement, or understanding, namely Mr Betts, killed Mr Hall;

    (4)     that the killing of Mr Hall was unlawful, that is not in lawful self-defence.

    First, if it is proved beyond reasonable doubt that all or some of the accused who did not do the killing, namely Mr Presley, Mr Miller, Mr Smith, were party to an agreement with Mr Betts, not in this case to cause grievous bodily harm, but in the accused’s own mind the agreement was to expose the deceased Mr Hall to an appreciable risk of serious harm by unlawful and dangerous act, and as a result of that the deceased was killed, then that accused will not be guilty of murder but guilty of manslaughter.

    So, if in the mind of an accused who did not do the killing the agreement was not to cause grievous bodily harm but rather an agreement to engage in an unlawful act that exposed Mr Hall to an appreciable risk of serious harm, that accused is not guilty of murder but guilty of manslaughter.

    I need to add one qualification to that proposition. If you were to find Mr Betts guilty of manslaughter on the basis that his act of stabbing Mr Hall in an act of self-defence is disproportionate, that is to say excessive self-defence, the other accused who did not do the killing would not be guilty of murder or of manslaughter. This is because once self-defence has not been rejected beyond reasonable doubt in any form, either totally or proportionally, an accused who did not do the killing would not be guilty of either charge.

    But if there is no plan proved and therefore no joint enterprise to do anything, then irrespective of the general behaviour of any of the accused, namely Mr Presley, Mr Miller or Mr Smith, they would not be guilty of murder or manslaughter.

12. When dealing with Presley discretely, the Judge directed the jury in the following terms that accorded with his general directions as follows:

    If you are not satisfied beyond reasonable doubt that Mr Presley is guilty of murder either on the basis of joint enterprise or on the basis of extended joint enterprise, you must consider whether he is guilty of manslaughter. You will only need to consider whether Mr Presley is guilty of manslaughter if you first found Mr Betts guilty of murder or manslaughter.

    However, if you found Mr Betts guilty of manslaughter on the basis of excessive self-defence, you cannot find Mr Presley guilty of manslaughter. This is because once self-defence has not been rejected beyond reasonable doubt in any form, either totally or proportionately, an accused who did not do the killing would not be guilty of either charge. If you have found Mr Betts not guilty of murder and not guilty of manslaughter, you cannot find Mr Presley guilty of manslaughter.

    The prosecution brings its case on the alternative verdict of manslaughter on the basis of joint enterprise. In order to find Mr Presley guilty of manslaughter on the basis of joint enterprise, the prosecution must prove that he came to an agreement or understanding with others, including at least Mr Betts, to expose the deceased Mr Hall to an appreciable risk of serious harm by an unlawful and dangerous act and in the course of implementing that plan, one of the parties to the agreement or understanding killed Mr Hall in circumstances not involving self-defence.

    In order to convict Mr Presley of manslaughter on this basis, you must first be satisfied that he was party to an agreement or understanding with Mr Betts and possibly others to commit an assault on one of the men in Grant Street, that is to apply force unlawfully to one of those men.  You must apply the same approach to your consideration of whether the evidence establishes that Mr Presley was party to an agreement or understanding of that character with at least Mr Betts, if not also Mr Miller and Mr Smith, as I have directed you in relation to the elements of murder on the basis of joint criminal enterprise.

    The only exception is that the subject matter of the agreement or understanding need not be with the infliction of really serious harm, but rather an understanding or agreement to commit an assault.

    In this context you must again consider what effect, if any, intoxication might have on your consideration of whether Mr Presley was party to an agreement or understanding of that kind. If you are satisfied that there was such an agreement, then you must consider whether the assault to which Mr Presley agreed was dangerous in the sense that a reasonable person in the position of the accused would have realised that it would expose one of those men in Grant Street to an appreciable risk of serious injury.

    It is for you as reasonable people to determine whether, if such an agreement existed prior to Mr Hall being stabbed, Mr Presley would have realised that the assault was dangerous in the sense that it would expose one of the men in Grant Street to an appreciable risk of serious injury.

    If you are satisfied there was an agreement to assault the men in Grant Street, you must decide whether a reasonable person would have realised that if the assault was committed, it would expose the victim to that appreciable risk of serious injury. If you are satisfied of those matters, you must next consider whether one of the parties to the arrangement or understanding killed Mr Hall in the course of the assault.

    I suggest to you that if you are satisfied that Mr Presley was party to an agreement or understanding to commit an assault on the men in Grant Street with Mr Betts, you will not have much difficulty in reaching a conclusion that one of the parties to the arrangement or understanding killed Mr Hall in the course of the assault.

    Finally, if you are satisfied of the above matters, you must next consider whether the killing of Mr Hall was unlawful, that is not in lawful self-defence. Again I suggest that will not cause you much difficulty at this stage. You will only consider whether Mr Presley is guilty of manslaughter on the basis of joint criminal enterprise if you have found that the prosecution has excluded self-defence on the part of Mr Betts beyond reasonable doubt.

    If you have found that the prosecution has not excluded self-defence on the part of Mr Betts, the question of whether Mr Presley is guilty of manslaughter on the basis of joint criminal enterprise will not arise. This is a matter for you.

    If you are not satisfied that the prosecution has proved each element of the crime of manslaughter against Mr Presley on the basis that he was party to an agreement to commit an unlawful and dangerous act as a result of which Mr Hall was killed, in the way I have described, then you must find him not guilty of manslaughter.

13. The Judge’s directions adequately addressed manslaughter by unlawful and dangerous act arising from a joint enterprise.

    Intoxication

14. Counsel for Presley complained that the directions given by the Judge on intoxication were inadequate.  It was said that directions were required to properly instruct the jury as to how their findings of fact on the evidence on intoxication affected ten matters concerning Presley’s awareness of those facts and his intention.  The ten matters were as follows: his awareness of the scope of any joint enterprise; whether he was subjectively aware of the intentions of other participants; whether he turned his mind to possible consequences of participation; whether he was aware Betts was carrying a knife; his awareness of the actions of other participants at the scene of the fight; his comprehension of or agreement to the level of violence; his knowledge of the level of violence used against Mr Hall and possible consequences of that violence; whether he intended that a person sustain grievous bodily harm; whether he was aware of a possibility that someone might be murdered; and whether he was aware of a possibility that someone might be killed in circumstances falling short of murder, that is, how intoxication could affect his liability for extended joint enterprise manslaughter.[26]  Presley further submitted that specific directions as to the relevance of intoxication to unlawful and dangerous act manslaughter were required due to the different state of mind for that avenue of liability as distinct from joint enterprise murder or murder by extended joint enterprise.  The cross referral of the jury back to earlier directions on intoxication was insufficient.

    [26]   See R v O’Connor (1980) 146 CLR 64; R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502.

15. Apart from making these general assertions, counsel for Presley made no attempt to further develop the submission or analyse, in particular, any aspect of the summing up.

16. As earlier discussed, no complaint was made about the Judge’s summing up by Presley concerning intoxication.  Had there been some complaint about a lack of adequacy of directions, and if the Judge considered them to have been of any substance, the matter could have been addressed immediately.  It is of concern that when matters are raised for the first time on appeal, they are raised in terms of complete generality with no condescension to particularity; neither in the written outline nor oral submissions did counsel attempt to demonstrate in regard to any particular matter how it was said that the Judge’s directions were inadequate.  This was an entirely unhelpful approach. 

17. The Director pointed out that the Judge reminded the jury that an Alco test of Presley at 3.00 am on 13 December gave a reading of 0.122 per cent and that a blood sample taken from Presley at 8.28 am on that same day had a level of 0.054 per cent.  Further, the jury was reminded that, assuming no alcohol was consumed in the intervening period, Presley’s blood alcohol level was likely to have been about 0.2 per cent at the time of the second confrontation.  In addition, the jury was reminded that the evidence of the police officers who saw Presley at about 11.30 pm was that he appeared moderately affected by alcohol when they saw him at Hayles Road and the evidence of Mr Willis was that everyone at Hayles Road that night was drunk.

1. The Director drew attention to the general directions given in regard to intoxication as that topic was relevant to other defendants as well as Presley.  Those directions addressed the relevance of intoxication to both counts.  The Judge directed the jury as follows:

   I referred earlier to the way in which intention can be proved.  In this case there is evidence that all the accused had been drinking alcohol.  There is evidence that Mr Miller and Mr Smith had been using cannabis and diazepam.  There is evidence from which you might conclude that the accused wee intoxicated.  It is a matter for you whether the evidence proves intoxication.  Further, it is a matter for you whether it is proved that intoxication deprived the accused of the requisite state of mind.  You must weight that evidence in deciding whether you are satisfied that the prosecution has proved the requisite state of mind to prove murder on the basis of joint criminal enterprise.

   The second way in which murder can be proved against an accused who did not inflict the fatal blow is extended joint criminal enterprise.  A person might reach an agreement or understanding with others to simply assault a person, but in the course of that assault one of the parties goes beyond the scope of the agreement or understanding and commits the crime of murder.  In that situation a person can still be guilty of murder if, when he agreed to commit the crime of assault, he foresaw the possibility that in the course of that assault the other party to the agreement might unlawfully kill the deceased with murderous intent or intentionally inflict really serious bodily harm and the accused continued to participate in the joint venture with that degree of foresight.

2. The Judge gave further specific directions on the topic of intoxication with respect to Presley.  Those directions addressed the relevance of intoxication with respect to murder, manslaughter, whether Presley entered into the relevant joint enterprise and, where relevant, what he might have foreseen.  In that respect, the Judge’s directions included the following:

   It is a matter for you whether you consider whether Mr Presley was intoxicated by alcohol at the time of these events. It is a matter for you, if you consider that he was intoxicated, whether he was intoxicated to such an extent that the prosecution has failed to prove that he had the state of mind required to form an agreement or understanding to participate in a joint criminal enterprise with Mr Betts, and perhaps others, to inflict really serious bodily harm, or in the alternative, to commit some lesser crime and that he contemplated in that context the possibility that in the implementation of any agreement or understanding of that kind some other participant in the plan might intentionally inflict really serious bodily harm.

   ...

   In this context you must again consider what effect, if any, intoxication might have on your consideration of whether Mr Presley was party to an agreement or understanding of that kind.  If you are satisfied that there was such an agreement, then you must consider whether the assault to which Mr Presley agreed was dangerous in the sense that a reasonable person in the position of the accused would have realised that it would expose one of those men in Grant Street to an appreciable risk of serious injury.

   ...

   Finally, if you are satisfied of the above matters, you must next consider whether the killing of Mr Hall was unlawful, that is not in lawful self-defence. Again I suggest that will not cause you much difficulty at this stage. You will only consider whether Mr Presley is guilty of manslaughter on the basis of joint criminal enterprise if you have found that the prosecution has excluded self-defence on the part of Mr Betts beyond reasonable doubt.

   ...

   If you are not satisfied that the prosecution has proved each element of the crime of manslaughter against Mr Presley on the basis that he was party to an agreement to commit an unlawful and dangerous act as a result of which Mr Hall was killed, in the way I have described, then you must find him not guilty of manslaughter.

   In this regard I repeat the direction I gave a moment ago concerning the evidence in relation to Mr Presley’s state of mind and the relevance to his state of mind of intoxication, should you be satisfied he was intoxicated at the relevant time.

3. In our view, the summing up of the Judge with respect to intoxication and Presley cannot be fairly criticised.  The Jury was made well aware of the relevance of intoxication by the general directions earlier referred to; the facts concerning Presley’s possible intoxication and their relevance to the particular issues in the case put against Presley were adequately addressed. 

   Knowledge of the Knife

4. Counsel for Presley complained about the Judge’s directions in regard to knowledge of the knife used by Betts.  It was said that the Judge’s directions were inadequate or confusing.  It was said that specific directions were required on the issue of Presley’s knowledge of the knife and each “form of liability”. 

5. Having directed that the relevant state of mind for joint enterprise was a plan to inflict grievous bodily harm and the relevant state of mind for extended joint enterprise was foresight that another might act with that intent, the Judge directed that whether Presley had knowledge before Mr Hall was stabbed that Betts had a knife would be important in making a finding as to his state of mind.  This direction addressed the issue specifically identified by Duggan J in Bosworth set out above.[27]  The relevance of the issue is obvious.  It had been the subject of submissions in the closing addresses.  The direction was sufficient to assist the jury.  There is no risk of a miscarriage of justice.

   [27]   R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502.

6. Presley complained of the following direction of the Judge:

   If you are not persuaded beyond reasonable doubt that he knew about the knife, then you have to weigh that in determining his intention and state of mind at the time he arrived on Grant Street.

   It is difficult to understand the complaint about this direction.  The arrival in Grant Street was before the stabbing.  The direction was favourable.  It would have been relevant if Presley learned of the knife after his arrival on Grant Street, but before the stabbing actually took place.

   Joint Enterprise Murder

7. Presley then complained that the Judge’s directions in relation to the elements of joint enterprise liability for murder were inadequate.  The written submissions were as follows:

   Directions in relation to the joint enterprise need not be unnecessarily exhaustive or complicated, but must be sufficient in relation to the circumstances of each case and the issues.[28]

   In the circumstances of this case, the appellant submits that the learned Trial Judge ought to have directed on the scope of any joint enterprise, the participants in the joint enterprise, whether there was more than one joint enterprise and whether the appellant participated in a joint enterprise with Mr. Betts as these matters were clearly in issue.

   [28]   R v Duong (2011) 110 SASR 296.

8. The jury was directed that in order to be guilty of murder any other defendant had to be part of a relevant agreement with Betts.  This requirement was then repeated when specific directions were given with respect to Presley. 

9. There was no requirement that the jury be directed that there might have been a number of agreements.  The question was whether Presley was part of a relevant agreement with Betts.  If he was, liability could attach.  If he might not have been, it could not.

10. There was no need to specifically direct that different participants might have had a different state of mind.  For joint enterprise, the relevant consideration was that Presley and at least Betts had the same murderous state of mind.  Similarly, for extended joint enterprise, the relevant consideration was whether there was an agreement to assault and Presley foresaw that another might act with intent to inflict grievous bodily harm.  The directions made that plain.  The fact that different people might have had different states of mind, and therefore verdicts might have been different for different defendants, was a matter addressed by the general directions to consider each defendant separately and the directions setting out what had to be established for a defendant to be guilty.

    Meaning of Grievous Bodily Harm

11. Counsel for Presley complained of the adequacy of the Judge’s direction as to the meaning of grievous bodily harm.  The submission was as follows:

    The meaning of “really serious harm” is taken from its context, namely from that which it defines – “grievous bodily harm”. By itself and absent the context, the repeated use of the phrase “really serious harm”, undefined and in substitution for “grievous bodily harm” may have inadvertently misled the jury as to whether or not the evidence was capable of proving beyond reasonable doubt that the required level of harm was actually intended by the appellant (for joint enterprise murder) or foreseen as a possibility (for murder by extended joint enterprise).The definition is not the thing it defines and, absent context, is apt to mislead.

12. The Judge directed the jury that grievous bodily harm meant really serious harm, and at different points of his summing up used both terms.  This approach accorded with the following observation of King CJ in Blevins:[29]

    ... it is desirable that the jury should be directed by using the expression "grievous bodily harm" and that generally speaking it is unnecessary and even undesirable to offer an explanation. If explanation is thought to be necessary, it should be confined to the expression "really serious bodily harm”.

    [29]   R v Blevins (1988) 48 SASR 65, 68.

13. A similar approach was adopted in Smith, where the Lord Chancellor said:[30]

    My Lords, I confess that whether one is considering the crime of murder or the statutory offence, I can find no warrant for giving the words “grievous bodily harm” a meaning other than that which the words convey in their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious.”...

    In our view, no sound basis of complaint has been advanced in respect of this topic of the Judge’s summing up. 

    [30]   R v Smith [1961] AC 290, 334.

    Leaving Extended Joint Enterprise Murder

14. Counsel for Presley complained that the Judge erred in leaving extended joint enterprise as a basis of liability for murder.  The submissions made in support of this complaint involved a repetition of the matters discussed above and also an assertion that the verdict was unreasonable and not supported by the evidence.  Apart from this submission, it was contended:

    Given the insufficient, inconsistent and confusing nature of the evidence there was a risk that the jury would fall into error in relation to this avenue of liability.

15. Earlier in these reasons, we have set out the principles with respect to extended joint enterprise.  Those principles have been endorsed by the High Court in Clayton[31] and are the principles to be applied by intermediate courts.  The issue for consideration is whether it was open on the evidence for the jury to conclude that Presley was part of the group who had at least agreed to cause harm.  It is to be recalled that Presley did not deny that he had been armed with a baseball bat and had used it during the second confrontation.  Further, in his record of interview, Presley made reference to weapons he thought were held by others. 

    [31]   Clayton v The Queen (2006) 81 ALJR 439.

16. In our view, there was sufficient evidence for the jury to find an extended joint enterprise involving Presley.  The bare assertions of insufficiency, inconsistency and confusion do not make out a basis for suggesting there was any error on the part of the Judge in his decision to leave extended joint enterprise as a matter for the jury. 

    Unreasonable or Cannot be Supported Having Regard to the Evidence

17. The final ground of appeal advanced by Presley was that the verdict was unreasonable or cannot be supported having regard to the evidence.  Earlier in these reasons we have set out the prosecution case against Presley of his presence and participation.  We have identified the evidence led in the trial to support this case.  In our view, the evidence allowed the jury to conclude that Presley was present and did participate in the attack on Mr Hall and that he did so with the necessary criminal intent. 

    The Appeal – Miller

18. Three complaints were advanced on the appeal by Miller. 

    Leaving Extended Joint Enterprise Murder

19. It was submitted that the Judge erred in leaving extended joint criminal enterprise as a basis for liability for murder in the circumstances of the case against Miller.  The thrust of this submission was that extended joint enterprise should not be left to the jury when it is unnecessary to do so as it causes confusion and obfuscates the real issues at trial.  It was asserted that the Judge had a discretion and should have exercised that discretion not to have left extended joint enterprise to the jury. 

20. At trial, it was accepted that the cause of death was the stabbing of the deceased by Betts.  Miller could only be guilty of murder on the basis of joint enterprise or extended joint enterprise.  We have earlier identified the principles to be identified when determining whether an extended joint enterprise existed.  The evidence capable of establishing Miller’s presence, participation and relevant state of mind are also set out above. 

21. It was open to the jury to conclude that Miller was part of a group who had at least agreed to cause grievous bodily harm to others.  This was an inference that could be reasonably drawn by the jury from a number of items of evidence, including the number of people who arrived at Grant Street and the evidence establishing the baseball bat that had been taken.  The evidence earlier referred to, in our view, allowed the jury to conclude that Miller was at least party to a plan to assault and that he foresaw the possibility that a member of the group acting in pursuance of the plan might act with intent to cause grievous bodily harm. 

22. Counsel for Miller submitted that it was redundant to leave extended joint enterprise murder because there was no possibility on the evidence that the jury would not be satisfied beyond reasonable doubt that Miller was guilty of joint enterprise murder but would be guilty of extended enterprise murder and, therefore, leaving both produced unnecessary complexity and potential confusion.  However, in our view, it was open for the jury not to be satisfied beyond reasonable doubt that the agreement to which Miller and Betts were parties extended to inflicting grievous bodily harm but to be satisfied beyond reasonable doubt that Miller contemplated the possibility that another would act with this intent. 

23. The jury had the assistance of both oral and written directions with respect to what had to be established by the prosecution for Miller to be found guilty of joint enterprise murder and extended joint enterprise murder.  As earlier observed, those directions were first given generally and then repeated specifically when Miller was the subject of express directions.  Those directions have been set out earlier in these reasons.  The Judge carefully delineated between extended joint enterprise murder and manslaughter.  The directions made plain the difference between the two paths to guilt.  They both required an agreement to commit an assault, but extended joint enterprise required Miller to foresee that another might act with intent to inflict grievous bodily harm. 

24. In the circumstances, the prosecution was entitled to press for extended joint enterprise to be left to the jury.  There was sufficient evidence on which a jury could convict on this basis and the Judge’s decision to leave extended joint enterprise was open.  It is unnecessary to decide whether a judge has a discretion to refuse to leave an avenue to guilt to a jury if the prosecution rely upon such an avenue.  In this case, extended joint enterprise clearly arose and it was appropriate to direct the jury accordingly.

25. A subsidiary complaint was advanced about the adequacy of the Judge’s direction concerning liability for murder by extended joint enterprise and manslaughter by unlawful and dangerous act.  Counsel acknowledged that specific directions had been given on the elements to be proved.  However, it was said that the different states of mind were not clearly identified.  It was suggested that the topic should have been addressed as the different states of mind were not straightforward and could be easily conflated by the jury. 

26. Earlier in these reasons, we have set out the general directions given as to what needed to be established for Miller to be guilty of extended joint enterprise murder and manslaughter by unlawful dangerous act.  Those directions were repeated when Miller’s conduct was the subject of specific directions. 

27. The directions clearly distinguished between extended joint enterprise murder and manslaughter by unlawful dangerous act.  The directions made plain the differences between these two paths to guilt.  Both required an agreement to commit an assault but extended joint enterprise required Miller to foresee that another might act with intent to inflict grievous bodily harm.  We consider that this ground of complaint has not been made out.

    Failure to Leave Manslaughter by Excessive Self Defence

28. Counsel for Miller submitted that the Judge erred in failing to leave an alternative verdict of manslaughter by excessive self defence.  It was argued that Betts’ primary defence at trial was that he acted in self defence in stabbing Mr Hall with a knife.  Mr Hall died as a result of the single stab wound.  This explanation was offered by Betts in his record of interview.  It is to be noted that Betts did not give evidence at trial and that Miller neither gave a statement to police nor evidence at trial. 

29. It was accepted that the Judge directed the jury on manslaughter by excessive self defence when addressing the case against Betts.  It was acknowledged that the Judge also directed the jury that if they found Betts not guilty of murder but guilty of manslaughter by excessive self defence they could not find the other defendants guilty of murder or manslaughter. 

30. It was against the background of the above submission that it was submitted that the Judge failed to direct the jury on manslaughter by excessive self defence for Miller.  It was submitted that the need to do so arose if the jury found that Miller attended at Grant Street with Betts believing he was going to “sort out” an earlier dispute, that any weapon or weapons in the possession of the defendants were for a defensive purpose and that Miller’s involvement in the confrontation at Grant Street was for a defensive purpose but that he, along with any of the other accused, acted excessively.  It was said that the fact the jury found that Betts did not act in self defence did not alleviate the need for the jury to consider Miller’s state of mind as inferred from his actions on this issue of self defence.

31. It was necessary for the Judge to leave manslaughter by excessive self defence with respect to Betts as it arose from his version of the facts as appeared in his record of interview.  Betts’ account was that there was a single incident and that, while in fear and, coincidentally, having a knife, he used it in self defence.  On this version, there was one incident and Miller was not present.  If Miller was present, it was during the second incident and in respect of the second incident there was no suggestion at trial that any joint enterprise to which Miller could have been a party might have been for a defensive purpose.  On any view, those who attended on the second occasion went with weapons and were seeking a confrontation. 

1. A jury need only be directed on so much of the law as is necessary for a determination of the real issue or issues of the case.[32]  The Director submitted that the above analysis demonstrated that it was not appropriate to leave manslaughter by excessive self defence with respect to Miller.  In our view, this submission should be accepted.  Those attending the second incident were doing so with a view to there being a confrontation.  They were armed to pursue that confrontation. 

   [32]   Alford v Magee (1952) 85 CLR 437.

2. Initially, Miller complained about the Judge’s direction regarding intoxication.  This complaint was abandoned in the course of Miller’s written outline of appeal.  The abandonment was confirmed on the hearing of the appeal. 

   Unreasonable or Cannot be Supported Having Regard to the Evidence

3. The final submission advanced by Miller was that the verdicts was unreasonable or cannot be supported having regard to the evidence.  In considering this submission, it is relevant to record that counsel at trial conceded that Miller was present at the time of the incident the subject of the charges.  Earlier in these reasons, we have summarised the evidence said by the prosecution to establish Miller’s presence, participation and state of mind.  The facts as recorded were not challenged on the appeal by Miller’s counsel.  In our view, given the concession that Miller was present at the time of the incident, the other facts were capable of establishing that Miller was acting with the others and was either party to a plan to inflict grievous bodily harm or foresaw that possibility.  With respect to the other charge, the other facts were capable of establishing that Miller was party to a plan to assault.

4. We do not consider that any basis has been made out to establish that the verdicts are unreasonable or cannot be supported having regard to the evidence as far as Miller is concerned. 

   The Appeal – Smith

5. Smith advanced three primary submissions.  It was submitted that the Judge’s summing up on the topic of lies was flawed.  Smith also submitted that the Judge’s directions concerning DNA evidence were flawed.  Further, it was said that the verdicts against Smith were unreasonable or cannot be supported having regard to the evidence. 

6. Additionally, a submission was advanced which sought to echo specific grounds advanced by Miller.  Those grounds were that the Judge erred in leaving extended joint criminal enterprise as a basis for liability for murder in the circumstances of the case, that the Judge failed to adequately direct the jury as to the distinction between murder by extended joint enterprise and manslaughter by unlawful and dangerous act and, finally, that the Judge failed to direct the jury that Smith could be found guilty of manslaughter by excessive self defence, notwithstanding that the defence of self defence may be rejected in respect of the case against Betts.  Smith, like Miller, abandoned any complaint in regard to the topic of intoxication. 

   Lies

7. At trial, there was no dispute that Smith gave a false account to a police officer about his whereabouts at the time of the incident.  In the early hours of 13 December 2012, Detective Cassell found Smith sleeping in a green Hyundai at 51 Northampton Crescent, Elizabeth East.  Smith told Detective Cassell that he had been at Mr Warrior’s house, not 33 Hayles Road, between 6.30 pm and 11.30 pm.  Smith did not dispute Detective Cassell’s account of what Smith told him. 

8. There was direct evidence that Smith was at Hayles Road on the night in question.  Mr Willis said that Smith was there before Betts and Presley left on the first occasion, and that he was still present when they returned and Betts complained that he had been assaulted.  Mr Willis said that Smith then left the house with Betts, Presley and Miller and returned with them after what must have been the altercation the subject of the charges.  This evidence was not challenged.

9. In addition to the evidence placing Smith at Hayles Road, and so establishing that he had lied to Detective Cassell, the prosecution also called two witnesses who had been at Mr Warrior’s house.  They were Tamika and Myrtle Wanganeen.  Both gave evidence that Smith had not been there at the relevant time.  Tamika Wanganeen said that Smith did not arrive until almost midnight.  At that time, he arrived with Betts and another man she did not know.  There was no challenge to this evidence.

10. The Judge, in the course of his summing up, reminded the jury of the evidence upon which the prosecution relied to place Smith in Grant Street and to prove his agreement, state of mind and conduct.

11. Smith did not give evidence at trial and nor did he rely upon what had been said to Detective Cassell for the truth.  That is, he did not say that his defence was one of alibi.  As a consequence, by the end of the trial, the statements to Detective Cassell were either irrelevant or they were available to be used as circumstantial evidence of guilt.

12. The Judge summarised the prosecution case as follows:

    I remind you of the evidence the prosecution relies upon in relation to Mr Smith to place him in Grant Street and prove his agreement and state of mind and conduct.

    1.Mr Willis gave evidence that Mr Smith was at 33 Hayles Road on the night of 12 December 2012. He was present before Mr Betts, Mr Presley and Amii Turner left the house to score some marijuana.

    2.The evidence of Mr Willis that when Mr Betts and Mr Presley returned, Mr Betts complained that he had been hit by three white men. Mr Presley said they should go back and see what the problem is. He says Mr Smith then left the house by the back door with Mr Betts, Mr Presley and Mr Miller.

    Presley was carrying a baseball bat. Again I point out at this time there is no evidence of a shovel, bottle or knife. Mr Willis says he followed them in the green Hyundai. He followed them until he saw them entering the laneway. He then returned to the house at 33 Hayles Road.

    He waited out the front of the house. He saw Mr Smith in company with Mr Presley, Mr Betts and Mr Miller coming back up the street towards the house. He said they had been gone for about five minutes. Someone brought back a baseball bat.

    One of that group other than Mr Betts said ‘We smashed them, we had a fight’. The group stayed at the house for five to ten minutes. Then Mr Willis drove the green Hyundai to 51 Northampton Crescent. Mr Smith travelled in the car with Mr Willis together with Mr Betts and Mr Miller.

    3.The evidence of Amii Turner, who places Mr Smith at Hayles Road with Mr Betts and Mr Presley return after Mr Betts complained he had been attacked and his lip bloodied, and who had been in the process of leaving to find them when they returned. I also again remind you of the direction I gave earlier about the need to scrutinise Mr Willis and Ms Turner’s evidence with great care.

    4.The prosecution relies on the eyewitness evidence of Ms Bateman of a man in Grant Street who might have fitted his description: bigger and stockier than the two involved in the earlier confrontation, that is to say Mr Betts and Mr Presley, and wielding a shovel or a baseball bat away from the attack on Mr Hall once he was on the ground. It is obviously a matter for you whether you are satisfied that was Mr Smith.

    5.The evidence of Pamela Turner of seeing an Aboriginal man heavier than the other two men from the first incident with curly black hair wearing a green T-shirt and red shorts who hit Mr Hall from behind in a chopping motion, using a long pole with a square part at one end. She said that the square part of the item hit Mr Hall in the back of his head. Again, it is obviously a matter for you whether you are satisfied that that was Mr Smith.

    6.The evidence from the DNA analysis that establishes Mr Hall’s hair and blood on the blade of the shovel found at 30 Butterfield Road. In this regard I remind you that there was no evidence of Mr Smith’s DNA on the handle or the shaft of the shovel. Dr Donnelly told you that there was insufficient DNA for profiling from the swab of the shovel’s handle or shaft.

    7.Mr Finlay-Smith’s evidence that one of the men present at the second incident in Grant Street was holding a greenish bottle that looked like a long neck. He observed this man hitting Mr Hall with the bottle.

    8.Constable Seccafien gave evidence of observing a bottle in the deceased’s hand when he attended the scene. A bottle is clearly visible in photos 8 and 31 in Exhibit P4.

    9.The fingerprint analyst Mr Neilson’s evidence that Mr Smith’s fingerprints were found on that Passionpop bottle. The prosecution says that evidence permits you to draw an inference that Mr Smith had held the bottle at some time. Both of those prints were consistent with the bottle being held both upside down and upright.

    Mr Neilson gave evidence that the identifiable prints that matched Mr Smith were consistent with someone pouring the bottle or drinking from the bottle or holding the bottle upside down around the base of the bottle. He said it is almost impossible to age a fingerprint and it is possible that any number of persons could have handled the bottle and not left fingerprints on it.

    10.Dr Donnelly gave evidence that a blood-like stain on the bottle obtained from a swab gave a positive reaction to the presumptive test for blood. He concluded that Mr Hall was a contributor to the DNA obtained from that swab. That evidence might provide corroboration of Mr Finlay-Smith’s evidence of saying that Mr Hall was hit with a bottle.

    Dr Donnelly also excluded Mr Smith as a contributor to the contact DNA deposit found on the mouth of the bottle. You might consider that contact DNA could be left on the mouth of the bottle from someone drinking from it. You might think that allows you to infer that Mr Smith did not hold the bottle to drink from it.

    You might consider the fingerprint evidence permits an inference to be drawn that Mr Smith was holding the bottle when the group of Aboriginal men entered Grant Street from the alleyway and attacked Mr King and Mr Hall. On the other hand, as Mr Boucaut submits, first, that the fingerprints are not consistent with the way in which you might expect a bottle to be held if it was to be wielded as a weapon and, secondly, those fingerprints of Mr Smith could have been left at an earlier time.

    Ms Telfer submits the bottle has come from Hayles Road. Someone from Hayles Road has brought it to Grant Street. It is obviously a matter for you whether you are satisfied that that person was Mr Smith. It is also a matter for you whether the prosecution has proved it was brought with the intention of using it as a weapon and it is a matter for you whether it has been proved it was used to strike Mr Hall, and it is a matter for you whether, if so, it has been proved it was Mr Smith who did so.

    11.Finally, the prosecution relies upon the evidence of Detective Cassell that he found a person sleeping in a green Hyundai in the driveway of 51 Northampton Crescent in the early hours of the morning of 13 December 2012. That person identified himself as Mr Smith.

    Detective Cassell gave evidence that the person told him that he had spent that night between 6.30 p.m. and 11.30 p.m. drinking at Ricky Warrior’s house. It is a matter for you whether you accept the account given by Detective Cassell. It is a matter for you whether you accept the person he spoke to was Mr Smith.

    The prosecution called evidence from Tamika and Myrtle Wanganeen. In December 2012 they lived at 120 Halsey Road. Ricky Warrior was Myrtle Wanganeen’s partner at the time. Ricky Warrior is Tamika Wanganeen’s stepfather. The evidence was he lived with them at that address. Tamika Wanganeen gave evidence that she had been at that address from 3 p.m. that day, that is to say 12 December 2012. She did not go to bed until 2 or 3 a.m. the following morning. She did not see Mr Smith until about midnight on 12 December 2012, when he attended at that address with Mr Betts and another man.

    Myrtle Wanganeen gave evidence that on 12 December 2012, Ricky Warrior was not at home.  He was at another house at Pooraka, where he had been for three or four days. She told the court that she knows Mr Smith and did not see him on 12 December 2012, but she was unable to identify him in the dock.

    The prosecution submits you should accept the evidence of the Wanganeens.  Their evidence was not challenged.  Again, that is a matter for you. The prosecution submits that the evidence of the Wanganeens establishes that Mr Smith, if it was him who told Detective Cassell that he had been drinking at Ricky Warrior’s house between 6.30 and 11.30 on the night of 12 December 2012, was telling a conscious and deliberate lie. The prosecution submits that Mr Smith told that lie to Detective Cassell out of a consciousness of guilt.

13. The Director submitted that the key issues in the trial with respect to Smith were:

    -whether he was present at the incident;

    -if present, whether he was part of an agreement with another, or others, also present;

    -if he was part of an agreement, the content of that agreement;

    -whether he participated in the furtherance of that agreement; and

    -depending upon the extent of any agreement relevant to the charge of murder, what he foresaw.

14. It was pointed out that, in the prosecutor’s closing address, reliance was placed on the lie as circumstantial evidence of guilt, in particular, as part of the circumstantial case establishing that Smith was present and participated in the attack.  The prosecutor did not invite the jury to find that if Smith was present and involved in the attack that the lie could say anything about his state of mind.

15. In his closing address, counsel for Smith submitted that if he had lied there might be innocent explanations.

16. It is convenient before addressing the complaint on appeal to set out the relevant principles concerning lies.  A lie generally impacts upon the credit of a defendant.  However, a lie may, in limited circumstances, amount to conduct that is inconsistent with innocence and therefore imply an admission of guilt.[33]  A lie will be probative of guilt only if it is deliberate and it relates to a material issue, namely it is concerned with some circumstance or event connected with the offence because the telling of the lie must be explicable only on the basis that the truth will implicate the accused in the offence charged.[34]

    [33]   Edwards v The Queen (1993) 178 CLR 193, 208.

    [34]   Edwards v The Queen (1993) 178 CLR 193, 209-10.

17. If a lie is relied upon to prove guilt, the direction should precisely identify the lie and the jury should be directed that it can only be used as evidence of guilt if it reveals knowledge of the offence or some aspect of it and it was told because the accused knew the truth would implicate him in the offence.  Further, the jury should be directed that there may be reasons for the telling of the lie apart from the realisation of guilt.[35]

    [35]   Edwards v The Queen (1993) 178 CLR 193, 210-1.

18. When summing up, the Judge directed the jury as follows:

    It is obviously a matter for you whether you consider Mr Smith did tell a lie. But I direct you as follows: generally speaking, the fact that an accused person tells a lie is not of itself evidence of guilt. If you conclude that an accused person has lied about a topic, that might form a basis upon which you could form a view as to the accused’s person credibility, but ordinarily a lie is not of itself evidence of guilt. However, lies told in some circumstances may provide some evidence of guilt. That is so when the nature of the lie or the circumstances in which it is told, or both, tend to indicate that it was told by the accused as a realisation of his guilt and an awareness that the truth would implicate him in the crime.

    Now in this case, Mr Smith has not given evidence.  That is his right and I remind you of the direction I gave on that subject earlier. You have not heard any explanation as to why he told Detective Cassell that he was drinking at Mr Warrior’s house on this night, if you find that that is what he said. If you are satisfied that he did say this to Detective Cassell and that it was a lie, you must evaluate this evidence. Let me give you a direction about that evaluation.

    In order to consider this lie, if you find it is a lie, is evidence of guilt of murder, you must first have to be satisfied that it was a deliberate lie and then that it was a matter which was directly related to the accused’s criminal responsibility for the killing of Mr Hall and the injuring of Mr King. You would then have to consider whether the telling of the lie, if that is what you find it was, was indicative of a realisation by Mr Smith that if he told the truth to Detective Cassell about where he was and what he had been doing between the hours of 6.30 and 11.30 on the previous night, it would have implicated him in those crimes.

    You should not be too ready to take the view that the lie, if you find it was such, was indicative of a consciousness of his own guilt. Speaking generally, sometimes people tell lies out of panic or out of an attempt to improve on the set of circumstances which they fear looks bad for them, or to avoid a consequence unrelated to any offence. Did Mr Smith tell a lie for fear he would be falsely implicated in a crime he nonetheless knew had occurred? You must consider all of the circumstances.

    However, if you are satisfied that Mr Smith told a lie, told a lie deliberately, and that the lie was told because he feared the truth, that is that if he told the truth about where he had been and what he had been doing the previous night it would have implicated him in the affray that resulted in the killing of Mr Hall and injury to Mr King, you could regard the telling of the lie as some evidence of guilt. In that event you would take it into account, along with all the other evidence in the case, in considering whether the accused’s guilt of murder has been proved beyond reasonable doubt.

    [Emphasis added.]

19. Counsel for Smith complained about the adequacy of this direction and the Judge further directed the jury on the topic of lies as follows:

    I just want to resume where we left off last night, where I was giving you some directions about telling a lie in relation to Mr Smith. As I said, it is a matter for you whether you are satisfied that when Detective Cassell spoke to Mr Smith in the early hours of the morning of 13 December 2012, when he had been found by Detective Cassell sleeping in the vehicle at Northampton Crescent and he told him that he had been drinking the previous night, that is to say, the same night but before midnight, he told him he had been drinking at Ricky Warrior’s house between 6.30 and 11.30, it is a matter for you whether you are satisfied that is a lie. If you are satisfied that is a lie, you have to then decide whether that lie was told out of a consciousness of guilt or was told for some other reason. He might have told a lie because he was concerned that he might be implicated falsely in a crime that he knew had been committed in Grant Street, or it might have been told out of a consciousness of guilt, a consciousness that he had participated in the attack in Grant Street.

    If you are satisfied it was a lie and it was a lie told out of a consciousness of guilt, it may not be something that will tell you much about his state of mind in participating in that attack, if that is the basis upon which you consider he told that lie, but it might be a basis upon which you can reason to his consciousness of his participation in that attack in Grant Street. I hope that is clear.

20. On the appeal, counsel for Smith complained about the adequacy of the Judge’s direction.  It was submitted that the Judge should not have directed the jury that the lie may provide some evidence of guilt.

1. Counsel drew attention to the decisions of the High Court in Edwards[36] and Zoneff[37] and to the observations of King CJ in Harris.[38]  Having regard to these authorities, it was submitted that the Judge should have directed the jury that if the lie had been proved, it was not something that could be used to prove the guilt of Smith.  It was then complained that even if the lie was capable of assisting the jury in concluding that Smith was present at the Grant Street incident it did not necessarily follow that it was proof of his being a party to a joint enterprise to kill.  It was said that the effect of his Honour’s first direction, and in particular the emphasised words set out earlier, was to conclude that a deliberate lie could be evidence of guilt of murder.  It was said that this was an invitation to use the lie as proof of murder as opposed to manslaughter.  It was claimed that the Judge’s further direction did not cure the misdirection. 

   [36]   Edwards v The Queen (1993) 178 CLR 19.

   [37]   Zoneff v The Queen (2000) 200 CLR 234.

   [38]   Harris v The Queen (1990) 55 SASR 321.

2. The final complaint related to the Judge’s direction that the accused had not given evidence and there was no explanation as to why he told the lie to Detective Cassell.  It was said that the effect of this direction was to highlight the fact that Smith had not given evidence and it invited the jury to take this factor into account when considering whether to find that there was a lie.  It was said that the direction implied that Smith was under some obligation to explain why he had lied and that he had failed to discharge that onus. 

3. The lie, in our view, satisfied the necessary criteria to be left to the jury as capable of amounting to circumstantial evidence.  It was open to the jury to conclude that the lie was deliberately told and went to a material issue, at the very least, Smith’s presence at and participation in the incident the subject of the charges.  As the Director pointed out, at trial, counsel for Smith did not accept that Smith was present at the second confrontation and invited the jury to reach a conclusion that the prosecution had not established that Smith was physically involved in the second confrontation at Grant Street.

4. The Director submitted that the Judge’s direction and redirection made it clear that the jury would understand that if they treated the lie as evidence of guilt it showed no more than presence and participation in some joint enterprise.  The lie did not say anything about what the joint enterprise was or what Smith’s state of mind might have been.  The Director drew particular attention to the further direction as extracted above and placed emphasis on the following portion of the above extract:

   ... If you are satisfied that is a lie, you have to then decide whether that lie was told out of a consciousness of guilt or was told for some other reason. He might have told a lie because he was concerned that he might be implicated falsely in a crime that he knew had been committed in Grant Street, or it might have been told out of a consciousness of guilt, a consciousness that he had participated in the attack in Grant Street.

   [Emphasis added.]

5. The Director submitted that there was no risk of a miscarriage of justice as a consequence of the way in which the Judge directed the jury.  In particular, the Director submitted:

   First, as set out above, the focus of the direction was very much towards the issue of participation only.  Second, the addresses did not invite the jury to consider state of mind. Third, there is inadequate reason to conclude that the jury would have used it for state of mind.  If the jury felt that the direction left that open, the logical question for the jury to ask was - what it could say about the state of mind?  Logical consideration of that question would have told the jury that it said nothing.  Fourth, this was obviously a live issue in both the mind of both the prosecutor and counsel for Smith.  Counsel for Smith had sought further direction and the prosecutor had been the one to suggest how Smith’s concern might be addressed.  Against that background when the further direction was given, there was no further complaint.

6. In our view, these submissions have weight.  The redirection in particular focussed the jury’s attention on the lie being relevant to Smith’s participation in the attack at Grant Street.  A review of the addresses confirms that there was no invitation to the jury, if they considered that a deliberate lie had been told, to consider that it was relevant to the state of mind of Smith.  We do not consider that these directions gave rise to a risk of a miscarriage of justice. 

7. The Director, when dealing with the complaint concerning an onus being cast on Smith, drew attention to the following direction:

   Now in this case, Mr Smith has not given evidence. That is his right and I remind you of the direction I gave on that subject earlier. You have not heard any explanation as to why he told Detective Cassell that he was drinking at Mr Warrior’s house on this night, if you find that is what he said.

   [Emphasis added.]

   This was a reference to the Judge’s earlier direction that:

   I now want to turn to another topic. As you are aware the accused elected not to give evidence in this court. They are not bound to give evidence. They have the right, and it is a very important right, to remain silent. That is their legal right and you should not draw any adverse inference from the fact they have elected to exercise that right. There may be many reasons why they did not give evidence. You should not speculate as to what those reasons might be. The underlying feature that you need to keep in mind always, is that it is for the prosecution to prove its case beyond reasonable doubt.

   [Emphasis added.]

8. In our view, the Judge’s directions did not have the effect of casting an onus on Smith.  The Judge had properly directed the jury that no adverse inference was to be drawn against a defendant for having chosen not to give evidence.  There was no risk of a miscarriage in this respect. 

   DNA Evidence

9. As earlier noted, Smith’s fingerprints were found on the Passion Pop bottle found at the scene.  Smith’s DNA was not found on the mouth of the bottle.  On the appeal, counsel for Smith complained of the following extract of the Judge’s summing up on this topic:

   Dr Donnelly also excluded Mr Smith as a contributor to the contact DNA deposit found on the mouth of the bottle. You might consider that contact DNA could be left on the mouth of the bottle from someone drinking from it. You might think that allows you to infer that Mr Smith did not hold the bottle to drink from it.

10. Counsel for Smith argued that the Judge’s comment was unfair.  It was said that the fingerprints could have been placed on the bottle at any time and the absence of DNA from the mouth of the bottle was not probative of guilt. 

11. The Director contended that the Judge’s comments were an observation about an inference that may be drawn from facts which were not in dispute.  It was not a direction to the jury.  The Director pointed out that the jury had heard evidence concerning the leaving of DNA on a bottle and understood that a person drinking from a bottle may not leave DNA on the bottle. 

12. In our view, the Judge’s comment was not unfair.  The bottle was found at the scene.  There was evidence that the bottle had been used as a weapon in the attack on Mr Hall.  Smith’s fingerprints were on the bottle.  There was evidence that Smith was at the scene and participated in the attack on Mr Hall.  The Judge’s comments concerning DNA reminded the jury of the evidence that a person drinking from a bottle may leave DNA on the mouth of the bottle and that Smith’s DNA was not found on the mouth of the bottle.  The DNA evidence, though not determinative, did not suggest that Smith had drunk from the bottle.  It was open to conclude that Smith held the bottle for another purpose, relevantly, as a weapon in the attack against Mr Hall.  The Judge’s comment did not direct the jury to view the evidence in a particular way. 

    Unreasonable or Cannot be Supported Having Regard to the Evidence

13. The final complaint of counsel for Smith on the appeal was that the verdicts were unreasonable or cannot be supported having regard to the evidence.  We have earlier set out the evidence against Smith.  In our view, there was sufficient evidence to leave it open to the jury to find that Smith was present at the scene and participated in the attack with the necessary intent. 

    Conclusion

14. We dismiss the appeals.