R v Smith - [2006] SASC 331

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2006] SASC 331
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
7 November 2006
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
The appellant was convicted of murder after a trial before a jury in the Supreme Court - the appellant together with another man attacked and robbed their victim - a knife or knives were used by one or both of them - consideration of the adequacy of directions in relation to one of the paths to guilt left for the jury - whether the directions adequately identified that the jury was required to be satisfied that the appellant realised at the time his co-accused stabbed the victim that death or grievous bodily harm might result - consideration of whether the jury may have engaged in impermissible reasoning - the Judge's directions were inadequate - consideration of the application of the proviso - miscarriage made out - appeal allowed - new trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
Darkan v The Queen (2006) 80 ALJR 1250; Weiss v The Queen (2005) 80 ALJR 444, discussed.

R v SMITH
[2006] SASC 331
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: Mr Smith appeals against his conviction for murder.
Leave to appeal was granted by this Court, after leave to appeal had been refused by a single judge, on one ground only. That ground (as amended) raises a challenge to the correctness of the Judge’s directions to the jury in relation to one of the three bases on which the Judge told the jury they might convict Mr Smith.
The Court refused leave to appeal against sentence.
The factual circumstances
About 1.00 am on Saturday 28 February 2004 Mr Smith and Mr Hendry were in a motor car with Mr Falzon, the victim of the crime. Mr Falzon dealt in drugs. He had with him drugs for sale. The three men were known to each other.
The prosecution case was that Mr Smith and Mr Hendry planned to rob Mr Falzon of his drugs.
The prosecution case was that while sitting in the car, Mr Falzon was attacked by one or both of Mr Smith and Mr Hendry, and was stabbed with a knife or knives. Mr Falzon got out of the car and ran towards Grand Junction Road, which was not far away. He left a trail of blood. Mr Hendry followed on foot. Mr Smith joined the pursuit, driving the car. Mr Smith drove the car on to the footpath, blocking Mr Falzon’s escape and possibly striking him. The prosecution contended that the evidence indicated that Mr Smith and Mr Hendry again attacked Mr Falzon. Mr Falzon managed to escape again, and ran to Grand Junction Road. There, on the prosecution case, both men attacked him again with knives, stabbing him a number of times. The men were seen by two passing motorists and by another person. These three people gave evidence describing what appeared to be a continuation of the attack on Mr Falzon. On the prosecution case Mr Smith and Mr Hendry broke off the attack when one of the passing motorists stopped and challenged them. Mr Falzon had suffered multiple stab wounds, from which he died in hospital later that morning.
Mr Smith and Mr Hendry fled from the scene. As they fled, they left at the scene various items that linked them to the stabbing. Both were arrested within a day or so. When arrested, each of them admitted being in the car with Mr Falzon. Each of them told the police that the other one had attacked Mr Falzon. Each of them denied giving assistance or encouragement to the other man.
The prosecution case
The prosecution case was that these accounts were not only at odds with each other, but also with a substantial body of evidence, including the evidence of three eye witnesses. There was a substantial body of other evidence supporting the prosecution case.
Mr Smith gave evidence at the trial, Mr Hendry did not. At the trial each of the accused maintained that it was the other one who, alone and without encouragement, attacked and killed Mr Falzon.
The prosecutor opened the case on three bases. The first basis was that each accused had joined in the attack, stabbing Mr Falzon with a knife, intending to kill him, or to cause grievous bodily harm. That was and remained the primary case advanced by the prosecutor.
The second basis on which the prosecutor opened the case was that of joint enterprise, involving a common intention to kill or to cause grievous bodily harm.
The third basis contemplated the possibility of the jury finding that only one of the men stabbed Mr Falzon, and that there was no joint enterprise. The third basis was that one of them had aided and abetted the other in killing Mr Falzon, by rendering assistance and encouragement, knowing that the other intended to kill Mr Falzon or to cause him grievous bodily harm.
The Judge’s directions
By the time the Judge came to sum up, the emphasis of the prosecution case had shifted slightly.
The primary contention by the prosecutor remained that Mr Smith and Mr Hendry both attacked Mr Falzon with knives, and were guilty of murder on that basis.
The Judge directed the jury in relation to that approach, and did so in terms that were not criticised.
The second contention by the prosecutor was that if the jury found that one of the men alone stabbed Mr Falzon, and was guilty of murder, they should find that the other was guilty as an aider and abetter of the killer. The prosecutor argued that the jury could be satisfied beyond reasonable doubt that either one of the men was the killer, and that the other was an aider and abetter.
The Judge directed the jury in relation to that approach also, again in terms that were not criticised.
The third basis of the prosecution case, as put to the jury, was a variant of the second basis as opened to the jury. It was based on evidence given by Mr Smith, and in particular on his cross-examination. Mr Smith said in evidence that it was Mr Hendry who had stabbed Mr Falzon, and that he did so without warning and without any encouragement from Mr Smith. On Mr Smith’s evidence the plan to rob Mr Falzon of the drugs he had went wrong quite unexpectedly when Mr Hendry did this. The prosecutor made the point that Mr Smith’s evidence could be used against Mr Hendry and, of course, against Mr Smith. Under cross-examination Mr Smith agreed that he knew that Mr Hendry was carrying a knife that night, and that not long before the incident he realised that Mr Falzon also was carrying a knife. Under cross-examination Mr Smith agreed that it was likely that Mr Hendry and Mr Falzon would produce their knives if the planned robbery went ahead, that there was “a real risk” that Mr Falzon might be stabbed, that the situation was “a powder keg ready to go up”, and that the “combination of men in a car involved in drug dealing producing knives, was potentially fatal …”.
The prosecutor put to the jury that if Mr Smith “contemplated the infliction of really serious harm or grievous bodily harm as a possible incident or a possible outcome of the armed robbery”, he could be guilty of murder.
The prosecutor put to the jury that Mr Smith had lied to them, and was not a witness of truth, but the prosecutor argued that if the jury accepted his evidence beyond reasonable doubt, and he emphasised this, they could be satisfied that Mr Hendry had stabbed Mr Falzon, and was guilty of murder. As well, they could be satisfied that, on the basis just outlined, Mr Smith was guilty “from his own mouth on his own evidence”. On that approach he was guilty as a party to a joint enterprise. The prosecutor reminded the jury of the evidence given by Mr Smith in cross-examination. The prosecutor emphasised several times that the prosecution did not accept Mr Smith’s evidence generally.
The Judge directed the jury in relation to this basis in terms that were correct in law. This aspect of the Judge’s summing up is conveniently summarised in a memorandum that the Judge gave to the jury. It is convenient to set out that part of the memorandum. It reads:
Where two persons reach an arrangement or understanding that a certain crime will be committed and in the course of carrying out that common purpose a murder is committed, then both the parties to the arrangement are guilty of murder if it was within the scope of the common purpose that murder might occur.
The scope of the common purpose is to be determined by what was contemplated by the parties sharing that common purpose.
The fact of the arrangement and that the parties to it contemplated that in the course of carrying it out death or grievous bodily harm might be intentionally inflicted, must be proved beyond reasonable doubt.
The Judge elaborated on that summary. She linked the law to the facts.
The Judge commented to the jury that this third basis was “quite tenuous” compared with the other two bases. She said that the jury would only consider this basis if they “rejected the main thrust of the prosecution case”. She said that the prosecutor had put to them that “the accused Smith is guilty of murder on his own evidence”.
A little later she explained to the jury how the common purpose approach might result in the accused being guilty of manslaughter rather than of murder.
Later still the Judge related the law more closely to the facts. She dealt with the first two bases for a finding of guilt. She then said:
You will remember that when Mr Pearce cross-examined Mr Smith late last Thursday, he put to him that as Smith pulled up in Hill Road and as the robbery plan was put into effect, Mr Smith knew that there was a real chance that Mr Falzon would produce his knife. Mr Smith agreed with that. Indeed he agreed it was likely. He agreed that at the time he knew it was likely. He also agreed that he knew it was very likely that Mr Hendry would produce his knife and the combination of men in the car involved in drug dealing producing knives was potentially fatal. He agreed it was a ‘powder keg’ ready to go up. Well, ladies and gentlemen, you will understand from what I have said to you of the principle of law involved, that those admissions, coupled with proof of elements 2, 3 and 4 of murder, would, depending on the way you view it, make Mr Smith guilty of murder. That would be so if you accepted the truth of those statements beyond reasonable doubt. That onus and standard of proof would apply where it was Mr Pearce seeking to rely on Mr Smith’s evidence to prove the prosecution case. Of course where the accused relies on his evidence or any other evidence, there is no onus on him. But I hasten to add that the following day in cross-examination, you might recall, Mr Smith seemed to step back from some of the admissions he had made when he was first cross-examined.
Issues on appeal
Mr Ibbotson, counsel for Mr Smith at trial and on appeal, complains that her Honour did not direct the jury adequately in relation to the possible verdict of guilty of manslaughter arising from the application of the common purpose approach. He submits that in particular she failed to direct the jury sufficiently on the point that any common purpose that existed must have changed from simply grabbing the drugs from Mr Falzon and running away, using Mr Hendry’s knife as a threat only, to a purpose that contemplated Mr Falzon producing a knife as well. He made the point that it was only in the course of the events of the night that the accused realised Mr Falzon had a knife, and that Mr Falzon producing a knife could not have been within their contemplation until then. He also referred to other changes in the robbery plan along the way. In effect his submission was that the Judge did not adequately direct the jury in relation to the alternative verdict of guilty of manslaughter rather than guilty of murder. He makes the further point that the plan to rob Mr Falzon was also referred to by Mr Smith in the recorded interview with the police that had been played to the jury. The matter did not turn entirely on the evidence given by Mr Smith. As I understand the submission the effect of it is that there was a failure to remind the jury of facts that might support the lesser verdict. He also submits that by describing the third basis for a conviction as “quite tenuous”, the Judge undermined the defence case in relation to a possible verdict of guilty of manslaughter, reached by this route. He submits that the Judge’s approach implied that the prosecution has made out a case for murder on one of the other bases.
I do not agree. The Judge made it clear that her “quite tenuous” comment reflected the fact that the prosecutor had put the joint enterprise approach as a last resort. If anything, the comment was favourable to Mr Smith in this respect. The comment implied nothing about the strength of the prosecution case in relation to the first two bases. While the Judge might have said a little more about how, on the facts, the jury might reach a verdict of guilty of manslaughter applying the common purpose approach, the summing up was adequate in this respect.
However, there is a difficulty to which Mr Ibbotson also alluded, although it was not his main criticism of the summing up.
It was essential that the jury give careful consideration to the meaning of the admissions that Mr Smith made in cross-examination. The jury could convict Mr Smith of murder on the third basis left to them only if satisfied beyond reasonable doubt that, prior to the stabbing of Mr Falzon, Mr Smith realised that a knife or knives might be produced and that the production of the knife or knives in the course of the proposed robbery might result in Mr Falzon being killed or suffering grievous bodily harm as a result of him being stabbed with the intention of causing death or grievous bodily harm. Proof that Mr Smith knew or realised this, before the stabbing began, was crucial.
Some of the cross-examination was clearly directed to Mr Smith’s belief at the time. But some questions are capable of being read as referring to what Mr Smith realised, in retrospect, when in court. The following passage (the last part in particular) from the cross-examination illustrates the point:
QAt that stage it must have been pretty clear to you, knowing that Mr Falzon is armed, that there is a real chance that he is going to produce that knife when he is having his drugs stolen from him.
AYes; but when we got down there I honestly thought that we were just going to grab whatever he had and run before he had a chance to use his knife or anything like that.
Q     But he has got legs, he can run after you.
A     Yes, that’s true.
Q     Bring his knife with him.
A     Yes.
QSo isn’t it the case, I suggest it is just a matter of commonsense, that you, as you pull up in that side street in Wingfield, that when you effect your robbery of Mr Falzon there is a real chance he is going to produce his knife.
A     Yes, that is possible.
Q     Likely, isn’t it.
A     Yes.
Q     And you knew at the time that it was likely.
A     Yes.
QAnd you knew at the time it was also very likely that Mr Hendry would produce his knife.
AYes.
QAnd that that combination of men in a car involved in drug dealing producing knives, was potentially fatal, wasn’t it.
AYes, it was.
QI mean that’s a powder keg ready to go up, isn’t it.
AYes.
QAnd that’s the situation that you knew was likely to develop when you pull up in Hill Road.
AYes; but when we got down there I just – after we had knocked on the door – pretended to – I just naturally thought we weren’t going through with it.
More significantly, when the cross-examination resumed the following morning, Mr Smith distinguished between what he acknowledged, looking back, and what he knew at the time. The following passage of the cross-examination illustrates the point:
QYou told us yesterday, you agreed with a suggestion that that combination of Mr Hendry with a knife and Mr Falzon with a knife in a car, while a robbery is taking place, was a powder keg waiting to go up. That’s the truth of it, isn’t it.
AI did say that, yes.
QAnd you knew that at the time, didn’t you.
ANo, I didn’t expect that, no.
QWhat did you think was going to happen.
AI just thought well, we would rip him off and then just get away. I didn’t expect any violence.
A few minutes later the following questions and answers followed:
QDriving down there knowing he has got a knife, didn’t you know that it was likely he might want to produce that knife.
AI didn’t know. It is possible that he could have but I didn’t have that in mind.
QYou maybe didn’t want it to happen, but it was always a very likely outcome, wasn’t it.
AYes.
QThere is really two propositions there, in fairness I will separate them. Firstly, you agree that you didn’t want that to happen.
AYes.
Q But you also agree that that was a very likely outcome.
AYes.
QAnd that because that was a very likely outcome, there was always that real risk that Mr Falzon might be stabbed with one of the knives, wasn’t there.
ALooking back at it, yes.
QThink about it at the time though.
AAt the time I didn’t think so, no.
QYou know you are committing an armed robbery, you knew that Mr Hendry had a long-bladed kitchen knife, you knew that Mr Falzon had a knife, you must have known I suggest, bearing in mind all of those facts, that there was a real risk that Mr Falzon would get stabbed with one of the knives.
AI honestly didn’t think of that, no.
QAt the time did you think that it was possible.
AAt the time I didn’t think it was possible, no.
This was effective and potent cross-examination.
But the jury had to consider whether they were satisfied that Mr Smith was admitting that at the time, as distinct from in retrospect, he realised that death or grievous bodily harm might be the result of the plan to rob Mr Falzon. The answers that Mr Smith gave were capable of supporting that conclusion, but were also capable of leaving the jury in a state of reasonable doubt, if the jury accepted that what Mr Smith really meant was that he now acknowledged the force of what was being put by the prosecutor, but did not appreciate these things at the time.
Moreover, as I have said, to convict Mr Smith of murder on this basis the jury had to be satisfied that Mr Smith realised, at the time, that Mr Hendry might stab Mr Falzon, intending to cause death or grievous bodily harm. The cross-examination did not deal directly with this aspect of the matter, that is, Mr Smith’s appreciation of Mr Hendry’s state of mind or intention. The Judge’s directions (in the written summary set out above, and as amplified orally) identified for the jury this aspect of the matter. But it was essential that the jury consider this aspect with particular care. Foresight that death might result in the course of the robbery was not, of itself, enough.
There was a particular need for care on this point because the prosecutor referred to the situation as “potentially fatal” and as “a powder keg”. These descriptions had the capacity to obscure the need to distinguish between the consequence, and the intention with which Mr Hendry acted.

The submission that Mr Smith had convicted himself “on his own evidence” or out of his own mouth was also a potent one. For that reason it required careful consideration of the relevant cross-examination.
In the passage from the summing up set out above, the Judge said that those submissions might make Mr Smith guilty of murder “depending on the way you view it”. In my respectful opinion this direction was not sufficient. The Judge’s directions on the law were sound, but this part of the directions did not bring home to the jury the crucial points that required careful consideration. It assumes that the jury appreciates the crucial distinction between what Mr Smith knew at the time, and what he was driven to acknowledge, in retrospect, in the witness box.
It also assumes that the jury appreciates the crucial distinction between a consequence (the causing of death in the course of the robbery) and an act intended to produce that consequence, or at least intended to cause grievous bodily harm.
In the particular circumstances it was necessary for the Judge to remind the jury of these distinctions. Without a reminder, there was a real risk that they would be overlooked.
The Judge’s comment that Mr Smith was guilty of murder if the jury “accepted the truth of those statements beyond reasonable doubt” might have suggested to the jury that the distinctions to which I have alluded were not an issue, that the only issue was whether the admissions that he made were truthful.
For those reasons I conclude that, in this respect, the Judge’s directions were inadequate. They did not identify for the jury crucial issues of fact. Nor did they give the jury sufficient assistance to enable them to consider the crucial evidence. I have described the cross-examination and the prosecutor’s submission as potent, and indeed they were. That is all the more reason why the jury needed to be reminded, with care, and with a reference to the cross-examination, of the crucial points for their consideration.
The deficiency in the summing up is a significant one, because it left it open to the jury to find Mr Smith guilty of murder by a process of reasoning that would be wrong if followed.
The result of the error
Subject to the effect of the proviso, Mr Smith’s conviction must be set aside, and a retrial ordered.
Mr Brebner QC, counsel for the Director, submits that the prosecution case on the first two bases left to the jury was a compelling one. That may be, but the jury might have convicted Mr Smith on the third basis. That possibility cannot be excluded.
Mr Brebner further submits that the appeal should be dismissed on the ground that “no substantial miscarriage of justice has actually occurred”: s 353(1) of the Criminal Law Consolidation Act 1935 (SA). He submits that the court can and should determine that Mr Smith was proved beyond reasonable doubt to be guilty of the murder of Mr Falzon on each of the first two bases left to the jury.
The approach to be taken to such a submission is conveniently summarised by Gleeson CJ, Gummow, Heydon and Crennan JJ in Darkan v The Queen [2006] HCA 34; (2006) 80 ALJR 1250 at [84], reflecting the decision of the High Court in Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444. Their Honours said:
[84]An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.
There are two further points made in Weiss that should be noted. They are contained in the following passage from the reasons of the Court in Weiss:
[43]There are, however, some matters to which particular attention should be drawn. First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Second, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt. (footnotes omitted)
The application of the proviso
It is convenient to begin by considering the significance of the fact that the jury found Mr Hendry and Mr Smith guilty of murder.
The jury’s verdict in relation to Mr Hendry is explicable on the basis that Mr Hendry stabbed Mr Falzon, deliberately, and intending to cause him death or grievous bodily harm, and that Mr Smith did so at the same time (the first basis left by the Judge). It is also explicable on the basis that Mr Hendry alone stabbed Mr Falzon (the second basis left by the Judge) and on the basis that it was Mr Smith alone who stabbed Mr Falzon, and that Mr Hendry aided and abetted him in doing so (another application of the second basis left by the Judge). There was substantial evidence in support of each of those bases.
The jury’s verdict in relation to Mr Smith is explicable on the basis that the jury was satisfied beyond reasonable doubt that Mr Smith stabbed Mr Falzon at the same time as did Mr Hendry (the first basis left); on the basis that Mr Hendry alone stabbed Mr Falzon but that Mr Smith aided and abetted him in doing so (the second basis left); on the basis that Mr Smith alone stabbed Mr Falzon, aided and abetted by Mr Hendry, and on the basis that Mr Smith was party to a plan to rob Mr Falzon that resulted in Mr Hendry stabbing Mr Falzon and killing him (the third basis left). There is no way of knowing which of those bases a jury adopted in relation to Mr Smith.
Can it be said that on any possible version, Mr Smith’s guilt was established?
If the jury found that Mr Smith acting alone stabbed Mr Falzon (and on that basis they must have found that Mr Hendry was an aider and abetter), or if the jury were satisfied that Mr Smith joined with Mr Hendry in stabbing Mr Falzon, then on the evidence before the jury Mr Smith’s guilt of murder was established. A verdict of guilty of murder was inevitable.
If the jury found that Mr Hendry alone stabbed Mr Falzon (the only other possible version of the facts), can this Court, making its own independent assessment of the evidence, be satisfied that Mr Smith’s guilt was proved beyond reasonable doubt?
That question directs attention, once again, to the second and third bases for a conviction left by the judge to the jury.
As to the second basis (aiding and abetting) the prosecution case was a substantial one. The three eye witnesses (Ms Caruso, Mr Basheer and Mr Goodman) gave evidence which must have been accepted, and which established that two men (one of whom must have been Mr Smith) were involved in the incident and were at very close quarters with Mr Falzon on Grand Junction Road. But Mr Smith’s evidence-in-chief was to the effect that he was trying to get Mr Hendry to stop attacking Mr Falzon. Whether or not that evidence should be accepted, or gave rise to a reasonable doubt, depends on the reliability of the three eye witnesses and on the credibility of Mr Smith’s explanations. Only the jury could decide these matters. It is not possible for this court, relying on the transcript, to say that on the evidence of the eye witnesses, Mr Smith’s guilt was proved, on the basis that he was an aider and an abetter.
But do the admissions made by Mr Smith in cross-examination alter things?
Mr Smith admitted that after Mr Hendry attacked Mr Falzon, and after Mr Falzon ran from the car, Mr Smith drove the car a short distance following them, before he inadvertently (he claimed) veered left and ran off the road. He admitted that he intended to help Mr Hendry get away. He admitted that he knew that Mr Falzon was “running for his life”, and that he knew at the time that Mr Hendry was going to kill Mr Falzon. At another stage of the cross-examination he admitted that he knew that Mr Hendry was going to hurt Mr Falzon, although he said he did not know whether he was going to kill him. Later he repeated that he knew that Mr Hendry was likely to cause serious injury to Mr Falzon, and that he was intending to assist Mr Hendry by driving him from the scene. He denied that he drove his car on to the footpath to prevent Mr Falzon from escaping. Mr Smith admitted that shortly after he drove off the road and into the fence, he saw Mr Falzon and Mr Hendry on Grand Junction Road, and that he saw that Mr Hendry was continuing to stab Mr Falzon. Mr Falzon was trying to get away from him, and trying to wave down passing cars. Mr Smith said that he caught up with them and that when he did so he remonstrated with Mr Hendry, saying “what are you doing? Let’s get the fuck out of here”. At that moment Mr Basheer stopped his car, and called out to the men, and (according to Mr Smith) he and Mr Hendry immediately ran off.
It was open to the jury, on the evidence before them, to find that Mr Smith was guilty as an aider and abetter. But unless Mr Smith’s admissions amount to an admission of guilt, my view is that this Court cannot say that Mr Smith’s guilt as an aider and abetter was proved. Subject to the effect of his admissions, a finding of guilt depended upon the resolution of conflicting evidence, a task that this Court is not in a position to undertake.
In my opinion the admissions that Mr Smith made, although they implicated him in the events, did not of themselves amount to an admission of guilt as an aider and abetter. In particular, his admission that he followed the other two men in the motor car, intending to assist Mr Hendry to escape from the scene, is not of itself sufficient for a conviction. That admission has to be considered in the context of Mr Smith’s evidence that the events took him by surprise, and that he wanted to stop Mr Hendry from attacking Mr Falzon, or from continuing the attack.
For those reasons, I am not in a position to find that Mr Smith’s guilt on the second basis left to the jury was proved beyond reasonable doubt, either on the basis of admissions made by him or having regard to the evidence as a whole. If I was able to make that finding, the conviction could stand, because a verdict on the third basis (if that was the jury’s approach) would not have given rise to a miscarriage of justice, guilt having been proved on each possible version of how Mr Falzon was killed.
Nor, for the reasons already indicated, am I able to find that Mr Smith’s guilt on the third basis left to the jury was established beyond reasonable doubt, on the basis of his admissions or having regard to the evidence as a whole. The admissions on which the prosecutor relied are open to an interpretation that did not lead to a finding of guilt on this basis, and the true meaning of those admissions is a matter which, in my opinion, can be resolved only by the jury who saw and heard Mr Smith give that evidence. It cannot be resolved by this Court.
For those reasons I am not persuaded that this Court should dismiss the appeal on the basis that no substantial miscarriage of justice has actually occurred.
Leave to appeal
The Court refused leave to appeal against the conviction on the grounds that the verdict was unsafe and unsatisfactory. Leave was refused at an earlier hearing at which Mr Smith was not represented. The Court heard oral submissions from Mr Smith and from Ms Davison, and considered the reasons of the single Judge who refused leave to appeal. As to that, it suffices to record that Mr Smith’s argument was based on what he said were inconsistencies in the evidence of the key witnesses, Ms Caruso, Mr Basheer and Mr Goodman. We were satisfied that there was no substance in the points that Mr Smith made.
We also refused leave to appeal against sentence. The Judge imposed the mandatory sentence of life imprisonment on Mr Smith, and fixed a non-parole period of 20 years. Having heard submissions in relation to sentence, we were satisfied that it was not reasonably arguable that the sentence was excessive.
Conclusion
For all these reasons the appeal should be allowed, the verdict of guilty should be set aside, and a retrial should be ordered.
DUGGAN J: The background to this appeal is set out in the judgment of the Chief Justice.
The jury were directed that an alternative basis upon which the appellant could be convicted of murder arose from answers given by the appellant during cross-examination.
The jurors were told that, if they accepted the truth of the answers of the appellant and the other elements of the offence were proved, the appellant could be found guilty of murder. In my view, an equally important consideration was the meaning of the appellant’s answers.
The passage in the cross-examination which is said to contain the admission to murder is not free from ambiguity. If it were to be used as the basis of a conviction for murder, it would require careful analysis by the jury. The passage relied upon by the prosecution was paraphrased by the trial judge in the summing-up. However, although the trial judge commented on the fact that, later in the cross-examination, the appellant appeared to resile from some of the answers relied upon by the prosecution, the jury were not reminded of the content of the answers which qualified his earlier evidence.
In my opinion, the matters to which I have referred required further direction which was not given.
As the verdict of the jury could have been based on this path to conviction, the conviction must be regarded as unsafe.
I agree with the reasons of the Chief Justice. I agree that the appeal should be allowed, the verdict of guilty set aside and a retrial ordered.
GRAY J:
Introduction
This matter commenced as an application for leave to appeal to the Court of Criminal Appeal against both conviction and sentence. A Judge of this Court had previously refused leave.
At the hearing of the application, the Court refused leave to appeal against sentence and refused leave to appeal against conviction on all save one amended ground, which came to light at the hearing of the application. The Court subsequently heard full argument as to that ground.
The history of this matter is set out in the judgment of Doyle CJ. I respectfully adopt that history and only refer to the facts to the extent necessary for the understanding of my reasons.
Directions regarding admissions
As observed by Doyle CJ, when summing up, the trial Judge summarised the contentions of the prosecutor concerning the different bases on which the appellant could be found guilty of the crime of murder or alternatively of the crime of manslaughter. I agree with Doyle CJ that the Judge’s directions on the law were appropriate.
The issue of concern relates to comments made by the trial Judge with respect to admissions made by the appellant in cross-examination. These admissions were said to be relevant to one of the bases on which the Crown contended that guilt had been established - that the appellant was party to a joint enterprise involving a common intention to kill or to cause grievous bodily harm.
The cross-examination of the appellant giving rise to suggested admissions requires careful and close analysis. Three difficulties emerge. As Doyle CJ points out, a number of the appellant’s answers may have involved an element of hindsight. When it has been said that an admission amounting to an admission of guilt of the crime of murder has been made, it is important that there be no ambiguity about the effect of the admissions.
Several critical expressions were contained within the cross-examiner’s question, for example, the suggestion that a “powder keg” may develop. The difficulty with such an expression is its capacity to convey more than one meaning. The assent by the appellant that he was aware that a “powder keg may go up” does not convey any clear and precise meaning as to the appellant’s state of mind at the relevant time.
The third and, in my view, significant difficulty was that there was no clear admission by the appellant as to his state of mind concerning the possible intentions of his co-accused. There was no admission that the appellant was aware of the possibility that the co-accused would stab with intent to kill or with intent to cause grievous bodily harm. Such an admission was necessary before it could be said that the admissions of the appellant amounted to an admission of the crime of murder.
For these reasons I agree with the conclusion of Doyle CJ that the trial Judge’s directions with respect to these suggested admissions were inadequate.
The Proviso
Having concluded that the directions of the trial Judge were inadequate, it is necessary to consider the application of the proviso.
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Counsel for the Crown submitted that having regard to the strength of the Crown case, the inadequate direction did not deprive the appellant of a real chance of an acquittal. That evidence is reviewed in the judgment of Doyle CJ. The Crown case can be described as strong. This appeal should be dismissed notwithstanding the inadequacy of the direction if no substantial miscarriage of justice has actually occurred.
The difficulty that arises is that the jury may have been impressed by the evidence of the appellant to the point of accepting that evidence and then acting on the Judge’s direction as to the effect of the appellant’s admissions in cross-examination. This Court cannot exclude the real possibility that this was the approach that the jury took. It is not possible for this Court to review and assess the credibility of the appellant’s sworn evidence. In these circumstances there is a risk that a miscarriage of justice occurred. This risk cannot be described as insubstantial. To put the matter another way, I do not consider that “no substantial miscarriage of justice has actually occurred”. There is a risk that there has been a miscarriage of justice.
Conclusion
I would allow the appeal and order a retrial.