Schmidt v The State of Western Australia - [2013] WASCA 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SCHMIDT -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 201

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 14 JUNE 2013

DELIVERED : 30 AUGUST 2013

FILE NO/S: CACR 211 of 2012
CACR 212 of 2012

BETWEEN: STEFAN PAHIA SCHMIDT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
File No  :INS 208 of 2011

Catchwords:

Criminal law - Appeal against conviction - Section 279(1)(b) murder - The subjective and objective components of s 279 (1)(b) - Trial judge erred in directions to jury - Whether jury verdict unreasonable or cannot be supported - Whether trial judge failed adequately to canvass the defence case in his summing up

Criminal law - Conviction for murder quashed on appeal - Acquittal or new trial - Whether it would be unjust to order a new trial of the appellant for murder - Whether a judgment of conviction for manslaughter should be entered

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(5)
Criminal Code (WA), s 10A, s 10B, s 10C, s 23B, s 279, s 280, s 281
Criminal Procedure Act 2004 (WA), s 85, s 112, s 131, sch 1 div 2
Juries Act 1957 (WA), s 51

Result:

Appeal against conviction allowed
Appellant's conviction for murder set aside
Retrial ordered
Appeal against sentence dismissed

Category: A

Representation:

Counsel:

Appellant: Mr D Grace QC & Mr S B Watters
Respondent: Mr J McGrath SC

Solicitors:

Appellant: Malcolm J Ayoub
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Alford v Magee (1952) 85 CLR 437
Anderson v The Queen (1991) 53 A Crim R 421
Carroll v The State of Western Australia [2004] WASCA 254
Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
JRNT v The State of Western Australia [2011] WASCA 183
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
Pollock v The State of Western Australia [2011] WASCA 133
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Taiters; ex parte Attorney‑General [1996] QCA 232; [1997] 1 Qd R 333
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
Raux v The State of Western Australia [2012] WASCA 1
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527
The State of Western Australia v Schmidt [2012] WASCSR 151
Walsh v The State of Western Australia [2011] WASCA 119
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

Table of Contents

Martin CJ

Summary
The Trial

Prosecution opening
Defence opening

The evidence
Prosecution closing
Defence closing
The judge's directions
The sentencing proceedings
Foreseeability and intent
The sentencing hearing - continued
The grounds of appeal
Ground 2
The proper construction and application of s 279(1)(b)
Ground 1
Ground 3
Appropriate orders to give effect to the success of ground 2
The appeal against sentence

Buss JA

Overview of the State's case at trial
Overview of the appellant's case at trial
Appeal against conviction: the grounds of appeal
Appeal against conviction: ground 2: the Criminal Law Amendment (Homicide) Act 2008 (WA)
Appeal against conviction: ground 2: the text of s 279(1)(b)
Appeal against conviction: ground 2: the subjective and objective components of s 279(1)(b)
Appeal against conviction: ground 2: other aspects of s 279(1)(b)
Appeal against conviction: ground 2: relevant provisions of the Code as to when a killing is unlawful, causation and criminal responsibility
Appeal against conviction: ground 2: the elements of the alleged offence of murder
Appeal against conviction: ground 2: the critical point
Appeal against conviction: ground 2: the prosecutor's opening
Appeal against conviction: ground 2: defence counsel's opening
Appeal against conviction: ground 2: the appellant's formal admissions
Appeal against conviction: ground 2: the appellant's evidence‑in‑chief
Appeal against conviction: ground 2: the appellant's cross‑examination
Appeal against conviction: ground 2: the appellant was not re‑examined
Appeal against conviction: ground 2: the prosecutor's closing address
Appeal against conviction: ground 2: defence counsel's closing address
Appeal against conviction: ground 2: the trial judge's summing up
Appeal against conviction: ground 2: the trial judge's redirection
Appeal against conviction: ground 2: the jury's question
Appeal against conviction: ground 2: its merits
Appeal against conviction: ground 1
Appeal against conviction: ground 3
Appeal against conviction: appropriate orders including whether there should be a new trial of the appellant for murder
Appeal against conviction: orders
Appeal against sentence

Mazza JA

Ground 2
Ground 1
Ground 3
Having allowed ground 2, what is the appropriate order?

MARTIN CJ:

Summary

The appellant, Mr Stefan Pahia Schmidt, appeals from his conviction of the murder of Mr Andrew Marshall. On the evening of Sunday, 8 May 2011, both men were drinking in a bar on the first floor of the Ocean Beach Hotel in Cottesloe, a suburb of Perth. After (perhaps) a very brief interchange, Mr Schmidt pushed Mr Marshall in the upper body with sufficient force to propel him into and break a plate glass window near where they were standing. Mr Marshall fell through the plate glass window to the pavement below, sustaining injuries which led to his death.
The prosecution did not allege that Mr Schmidt intended to kill Mr Marshall. Rather the prosecution case for murder was brought on the basis that at the time he pushed Mr Marshall, Mr Schmidt intended to cause him a bodily injury of such a nature as to endanger, or be likely to endanger his life. However, at no point during the case did the prosecution identify the bodily injury which it was asserted that Mr Schmidt intended to cause, or, with any particularity, the manner in which it was asserted Mr Schmidt intended to cause such an injury. The prosecution case on that topic was no more specific than asserting that the jury could find an intent of the requisite character from the fact that Mr Schmidt pushed Mr Marshall with significant force in proximity to concrete pillars, brick walls and wall‑to‑wall windows.
Consistently with prior authority, the trial judge directed the jury that before they could convict Mr Schmidt of murder, they must be satisfied beyond reasonable doubt that he intended (subjectively) to cause Mr Marshall a bodily injury, and that the injury which he intended to cause was of such a nature (objectively assessed) as to endanger or be likely to endanger Mr Marshall's life. However, the trial judge gave the jury no more guidance on the subject of the particular bodily injury, or manner of bodily injury, which it was open to find Mr Schmidt had intended than that provided by the prosecution. Without such guidance, having regard to the ambiguity which the prosecution case was presented in this respect, and to the circumstances of this case, it would have been difficult for the jury to focus first upon the bodily injury which Mr Schmidt subjectively intended to cause and then subsequently assess the objective likelihood of that injury endangering human life.
In the circumstances of Mr Marshall's death, the jury could not have found that Mr Schmidt intended to cause Mr Marshall bodily injury of the kind sufficient to establish the offence of murder unless the jury found, beyond reasonable doubt, that Mr Schmidt intended to propel Mr Marshall into the window with sufficient force to break the window as, on the evidence, it was not open to find that Mr Schmidt intended to cause bodily injury of the requisite character any other way. In the circumstances of this case, a judicial direction to that effect was necessary to ensure that the jury properly addressed the critical question which it was required to resolve.
In the particular circumstances of this case, the failure to give such a direction created a real risk that the jury may have reasoned towards a conclusion of guilt without being satisfied beyond reasonable doubt that Mr Schmidt intended to cause Mr Marshall to impact and break the window, which was an essential step on the path to a conclusion of guilt of murder. This caused a miscarriage of justice. The appeal against conviction should be allowed and a retrial ordered. In the circumstances, it is neither necessary nor appropriate to deal with Mr Schmidt's appeal against sentence.

The Trial

Prosecution opening

The prosecutor opened the case on the basis that Mr Schmidt 'in a fit of rage, walked up to Andrew Marshall and after perhaps the barest exchange of words, pushed him so hard that he went through a window, landing or falling through that window onto the footpath below, suffering injuries of such severity that he was pronounced dead early in the hours of the following morning'. The prosecutor foreshadowed evidence which would establish that Mr Schmidt appeared to have argued with someone at one end of the bar on the first floor of the hotel, before walking over to an area where a girl Mr Schmidt regards as his sister, and another girl who was the girlfriend of Mr Schmidt's friend were talking to Mr Marshall. Within seconds of arriving at that area, Mr Schmidt pushed Mr Marshall with the result that he went through the window and fell to his death. Mr Schmidt then left the area, and as shown on closed‑circuit television footage, approached another man with whom he had no prior dealings, and punched him so hard that he fell to the ground, after which Mr Schmidt leant over and pushed him towards the wall. Mr Schmidt then left the hotel, walking adjacent to the area where Mr Marshall lay on the footpath where he was receiving attention from security staff and others, but without, himself, making any effort to render assistance or even inquire as to his condition.
The prosecutor foreshadowed expert evidence to the effect that the glass in the window through which Mr Marshall fell was 5.65 mm thick, which was slightly thinner than the other windows in the upstairs bar. The broken window was not made of safety glass, nor was it required to be, although two of the windows in the upstairs bar were made of safety glass. The expert evidence to be adduced by the prosecution was said to establish that a force of around 1,000 newtons - equivalent to the force exerted by gravity on a weight of about 102 kg moving at a speed of at least 2 m a second, or 7.2 kms an hour, would be required to break the window.
The prosecutor asserted that the jury would be satisfied that Mr Schmidt caused Mr Marshall's death, and that the State would prove that his death was not an accident, because it was objectively foreseeable. On the subject of intention, the prosecutor stated:
In this case the State does not allege that the accused premeditated - committed a premeditated killing. The State alleges that the accused, with an intention to cause bodily injury of such a nature as to endanger or be likely to endanger Mr Marshall's life. With that intention, he unlawfully killed Andrew Marshall. So if the State proves that the accused intended to do a bodily injury and you find that the bodily injury he intended to do was objectively likely to endanger Mr Marshall's life, or in fact did endanger his life, then the accused would be guilty of murder. So the State says that that was the accused's intention when he assaulted Andrew Marshall. To cause a bodily injury to him, which objectively was of such a nature as to endanger or be likely to endanger Mr Marshall (ts 140).
After referring to inferential reasoning, the prosecutor continued:
The State says that the intention in this case can been seen from all of the surrounding circumstances; that the accused was angry. You can see that yourself from the events leading up to Mr Marshall going out that window. The State will ask you to look at the force the accused must have used to propel Mr Marshall out that window. It will ask you to look at the direction that the accused pushed him in. Not back to the open floor space, not to the side, but at a window, a window of the size and shape of that window. We'll ask you to look at the accused's reaction afterwards. He immediately walked off. He was still so angry that he punched another innocent bystander and still went after him. And look at the force he used on that person. That's the kind of force that the accused was capable of applying. Far from being shocked and appalled into calming down and trying to assist as you might think the accused would have done if he had not intended to cause harm, he punched that other patron very hard and then left with that backward glance as Mr Marshall lay on the pavement. Now, the State says that when you look at all of the evidence in this trial, you'll have little trouble in coming to the conclusion that the accused had that intention required to establish the offence of murder (ts 140 ‑ 141).
That was the extent of the prosecutor's opening on the subject of the intention which the State asked the jury to find in order to establish the charge of murder. It will be seen that the prosecutor did not identify any form of bodily injury which it would assert that Mr Schmidt intended to cause. The prosecutor's references to the inferences which the jury should draw from the fact that Mr Schmidt pushed Mr Marshall in the direction of a window, and as to the extent of the force applied, inferentially suggests that it was the prosecution case that Mr Schmidt intended to cause Mr Marshall injury by causing Mr Marshall's body to break the window, but that was not explicitly put in the opening, nor at any later point in the trial.

Defence opening

Senior counsel for Mr Schmidt opened on the basis that Mr Schmidt accepted that he pushed Mr Marshall at the time and place alleged, but denied that he committed murder or manslaughter. Mr Schmidt had been drinking, but denied that he was in a blind fit of rage, or indeed that he bore any ill feeling towards Mr Marshall, to whom he had never spoken.
The defence case was that Mr Schmidt approached his two female companions to encourage them to leave the hotel and go home. Mr Marshall made a provocative remark causing Mr Schmidt to push him out of the way with his left hand, causing him to tumble backwards and fall towards the glass. His intention was simply to move him out of the way - it was never intended that he kill him or that he cause him to sustain life‑threatening injuries - he was simply pushing him out of the way. The defence case was that although the push was deliberate, the consequence of the push - namely, Mr Marshall falling through the window to his death, was a tragic accident.
On the subject of intent, senior counsel for Mr Schmidt stated:
As my friend says, murder can be a situation where you intend to kill someone. They resile from that. They accept that there was never any intent to kill this man and that's quite properly so we say. What they do say, however, is that he intended at the time he pushed him to cause him life-endangering bodily injury, not just any bodily injury, but they say that this man intended, and they need to prove this to show murder, life-endangering bodily injury to Mr Marshall. Now, the accused denies any such intention, and we say on the evidence it will be clear to you that no such intent is made out (ts 143 ‑ 144).
So, at this point at least, the defence case on intention was put to the jury at the same level of generality as the prosecution case.

The evidence

The prosecution led evidence from a number of bystanders who observed the critical events. It is unnecessary to analyse their evidence in detail for the purposes of this appeal. Consistently with the prosecution opening, the evidence established that after the briefest (if any) interchange between Mr Schmidt and Mr Marshall, Mr Schmidt pushed Mr Marshall with the result that Mr Marshall broke and fell through the window to the pavement below. As might be expected, the witnesses varied in their description of the precise circumstances of the incident, and in relation to the extent of the force used by Mr Schmidt.
The prosecution led evidence from Mr Samuel Neale, who was the principal building surveyor employed by the Town of Cottesloe, the municipality within which the hotel was situated. His evidence was to the effect that the requisite Australian Standard incorporated into the applicable building code required that the glass in the relevant window have a minimum thickness of 4 mm. The Standard did not require that the glass be safety glass.
The State also led evidence from Dr Ralph James, a lecturer in physics and biophysics at the University of Western Australia. He had measured the thickness in the glass of the window which was broken when Mr Marshall went through it. It was 5.65 mm thick - a little less than the other windows in the upstairs bar which varied between 5.79 and 5.87 mm thick but thicker than required by the relevant Australian Standard. Dr James had undertaken tests for the purpose of identifying and measuring the force required to break windows at the hotel which were similar to the window broken when Mr Marshall was pushed into it. After performing various tests, he formed the view that a force of between 1,000 and 2,000 newtons travelling at 2 m per second or faster would have been required to break the relevant window. His evidence was that a force of 10 newtons was approximately equal to the force of gravity on 1 kg of weight so that, a force of 1,000 newtons would be equivalent to the force of gravity on a weight of 100 kgs.
The jury also undertook a view of the Ocean Beach Hotel, pursuant to an order by the trial judge under s 51 of the Juries Act 1957 (WA).
Mr Schmidt gave evidence. His evidence was that he weighed approximately 150 kgs at the time of the incident, but was fit, having played rugby over a number of years. In May 2011 he was training at a gym at least two or three times each week. It was an admitted fact that as at May 2011 Mr Marshall weighed 90 kgs.
Mr Schmidt testified that in May 2011 he was working as a scaffolder. On Sunday, 8 May 2011, after celebrating Mother's Day with a breakfast, he started drinking vodka and orange juice, followed by beer. During the day, he smoked a cannabis cigarette and took two ecstasy tablets, in conjunction with more alcohol. He was one of a group of about 12 or 15 people who decided to go to the Ocean Beach Hotel at about 4.00 pm that afternoon. He arrived at between 4.00 pm and 4.30 pm. Upon arrival, he bought a round of drinks for the group. He said that he was feeling happy and was not feeling angry or aggressive.
The group was eventually joined by two girls: Ms Stella Paki, who is a woman Mr Schmidt regards as his sister, because her parents are his godparents, and Ms Leila McLeod, who was the girlfriend of Stella's brother, Wiremu Paki (also known as Woods). Those girls did not arrive until the larger group had been at the hotel for about two hours.
Mr Schmidt spoke by telephone to his girlfriend, who was living in New South Wales, at about 8.00 pm. He called her from the carpark outside the hotel, and spoke to her for between 30 and 40 minutes. He then returned to the upstairs bar. There was then a disagreement amongst a number of male members of the group, relating to an assertion that one of the members of the group was displaying romantic interest in Ms Paki. This led to a disagreement between Mr Schmidt and Woods. According to Mr Schmidt, Woods suggested to him that the situation could be resolved if the girls left. Mr Schmidt agreed and after going to the bar to obtain a glass of water, went over to the girls to give them their mobile phones (which he asserted he was holding) and to ask them to go home.

As Mr Schmidt approached the girls, he saw that they were talking to Mr Marshall. He had not noticed Mr Marshall earlier in the evening. He denied that he was angry or in a rage. However, when Mr Marshall looked at him as he approached the girls, Mr Schmidt told him to 'fuck off' by which he meant that Mr Marshall should go away. Mr Marshall said something back to him, but Mr Schmidt could not recall what it was. He had asked the girls to go home in a raised voice, and whatever it was that Mr Marshall said to him made him annoyed. As a result, according to Mr Schmidt, he pushed Mr Marshall with his left hand to the upper region of his chest or shoulder. He supposed that Mr Marshall's back would have been towards the window, towards Eric Street, although he was not paying attention to the walls and windows. He described the push as 'like a rugby fend off'. He denied pushing Mr Marshall in any particular direction, and asserted that his intention was for Mr Marshall to go away. He denied that he intended to push Mr Marshall toward, or into the window, or cause him any harm.
Mr Schmidt saw Mr Marshall strike the window with his back shoulders, after which it broke and he fell through the window. During his evidence‑in‑chief he denied any assertion that he intended to push Mr Marshall 'so hard that he went through the window'. He asserted that he could not believe what had happened, and again stated that he did not intend to cause Mr Marshall any harm of any kind.
According to Mr Schmidt, as he left the bar, there was another person standing there with his hands in the air who was screaming at him. He felt threatened, scared and intimidated, so he punched him and then pushed him aside. According to Mr Schmidt, he just wanted to get out of the hotel. He felt shocked and was just thinking that he had to get home.
As he left, he briefly saw Mr Marshall on the ground. He felt sick. He was scared - he was not trying to run away and leave the scene of the crime, but he did want to get home and gather his thoughts. According to Mr Schmidt, he did not turn his mind to what sort of injuries Mr Marshall might have had at that stage. He then met a friend, told him what had happened, and they travelled by taxi to Mr Schmidt's home.
The following day Mr Schmidt made arrangements to hand himself in to police, which subsequently occurred.
In concluding his evidence‑in‑chief, Mr Schmidt reiterated that he had no intention to hurt Mr Marshall, and did not at any stage intend to throw or push him through the window or even into the window. He did, however, accept that he pushed Mr Marshall, and that he had died.
In cross‑examination, Mr Schmidt denied that he was angry as he approached the girls - although he conceded that he was annoyed and frustrated as a result of his disagreement with Woods. He accepted that he was affected by alcohol, but did not feel overly drunk. He was unsure as to whether he yelled at the girls to go home (in order to be heard above the music) before or after he told Mr Marshall to 'fuck off', although he thought it more likely that he spoke to Mr Marshall after asking the girls to leave. He thought Mr Marshall was interfering with his communication with the girls, which is why he told him to 'fuck off' and pushed him. He asserted that his only aim was to get Mr Marshall to leave.
When it was put to Mr Schmidt that in fact he pushed Mr Marshall into a corner area, from which he would not be able to leave the area at all, Mr Schmidt asserted that he did not have a sense of direction as he was pushing Mr Schmidt (ts 714). Mr Schmidt thought that he was between 1 m and 2 m away from the window at the time of the push, although he accepted that he could have been as close as between half a metre and 1 m from the window at the time of the push.
During cross‑examination on the subject of the events which led to Mr Marshall going through the window, the following exchange took place:
And you'd accept, wouldn't you, you pushed him through the window?---Not intentionally. That was never part of what I pushed [sic intended].
I'm not asking you about your intention at the moment. I'm asking you did you push him through the window?---No, I didn't. I pushed him and then he went through the window. I didn't push him through the window. I didn't look at the window and say, 'There's a window. I'm going to push him through it'. That wasn't the case.
You pushed him through the window, didn't you?---No. I pushed him and he - and he fell backwards, hit the window and then went out the window.
You think there's a distinction?---What do you mean?
You think there's a difference between the two things that you're saying?---I do. Pushing someone through a window, from what you've asked me, is I've lined him up and I've pushed him straight out the window, which was not the case. Pushing someone and subsequently him losing his balance and falling back into a window and then going through, I can make a distinction between those two, yes.
Sorry. Are you now saying he lost his balance, Mr Schmidt?---Well, that's what I said. He was going backwards with his hand in his - hands in the air like this, shoulders back first. He went to go and push himself off and then pushed himself through.
He pushed himself through the window?---Well, that's what I preceived [sic perceived it] to be like. As he pushed himself of [sic off] the window he just went through (ts 717).
Counsel then described the motion simulated by Mr Schmidt (being the way in which Mr Marshall moved) as putting his arms up slightly above his shoulders, at about ear level, and arching his back backwards at the time he went through the window.
It is of some significance that, at this point in the cross‑examination, the prosecutor endeavoured to restrict Mr Schmidt from giving evidence with respect to his intention at the time of the push. The only point at which the prosecutor cross‑examined on the topic of intention was in the following interchange:
You know, don't you, Mr Schmidt, that - and you know from your employment history as much as anything else that concrete, brick, things like that are hard surfaces?---Yes.
And you know that you should not push or assault people around those surfaces, don't you?---Sorry, what do you mean?
You know that it is dangerous to assault people in areas like that, don't you?---I know it's dangerous to assault people in any circumstance.
Because - - -?---Not just specifically one certain area.
Any place?---That's right.
And glass you'd accept has an additional danger in that it breaks?---Correct.
And those are things that you specifically know more than other people because of your training as a bouncer?---And from what's happened.
No, I'm - okay. Let me make it clear. Back at 8 May, before this happened, you knew all of those things, didn't you?---I knew that when I done my security licence we were told sort of what to look for, how to judge people. We weren't run through specifics of certain thicknesses towards any kind of building material where there - - -
…
You meant to hurt Mr Marshall, didn't you?---No, I did not. I did not intend to cause him any harm at all.
And yet you knew that assaulting someone could do all sorts of harm?---In a general sense, yes, I did.
You knew that - - -?---But at that time of the incident I wasn't thinking about anything like that.
About doing - - -?---I wasn't thinking of hurting, not at all.
You knew that assaulting someone can kill them, didn't you?---I did know that, yes. Assaulting someone can lead to someone dying (ts 723, 730).
Within this passage of cross‑examination it is necessary to distinguish between those questions which went to Mr Schmidt's knowledge of the possible consequences (and their foreseeability) of assaulting Mr Marshall, and which were relevant to the question of accident, and those questions which went to his subjective intent at the time of the push. During the entire cross‑examination of Mr Schmidt, the prosecutor asked only one question on the latter topic, when she put to Mr Schmidt that he 'meant to hurt Mr Marshall' (ts 730). It is of significance to this appeal that at no point in her cross‑examination of Mr Schmidt, did the prosecutor identify the bodily injury which the State asserted Mr Schmidt intended to cause, or the manner in which Mr Schmidt intended to cause Mr Marshall harm, or put to Mr Schmidt that he intended to push Mr Marshall so as to cause him to break the window. However, during his evidence‑in‑chief, Mr Schmidt denied that he intended to cause any form of harm to Mr Marshall, and he specifically denied, during his evidence‑in‑chief, and in response to the prosecutor's earlier question which was not on the subject of intent, that he intended to cause Mr Marshall to break the window.

Prosecution closing

The prosecutor commenced her closing address by reminding the jury that she had told them, in the course of her opening address, that there were three real issues in the trial. They were first, what did the accused actually do - that is, what was the exact nature of his assault upon Mr Marshall; second, had the State established that Mr Marshall's death was not an accident; and third, what was the intention with which Mr Schmidt pushed Mr Marshall? The prosecutor then addressed those three issues in turn.
During the course of her remarks on the subject of precisely what Mr Schmidt had done, the prosecutor asserted:
You see, what the accused did is he didn't just push him towards the window, he pushed him at it, into it and through it. There is no room, we'd submit for any other conclusion in this case (ts 796).
In the same section of her address, in the context of referring the evidence given by Dr James, the prosecutor referred to the fact that the police had told him that they did not think Mr Schmidt meant to push Mr Marshall through the window. The prosecutor observed 'of course, that's a matter for you to determine, not the police' (ts 801).
The second topic addressed by the prosecutor was the issue of accident. She observed, correctly, that:
The State must prove either that the accused foresaw the death as a possible outcome of his assault upon Mr Marshall, or that an ordinary, sober person in the accused's position would reasonably have foreseen that Mr Marshall's death was a possible outcome of his assault upon him (ts 809).
In that context the prosecutor asserted:
The accused's own evidence shows that he was aware of his strength, his weight. He knew from his work history and fighting training that assaulting a person can be fatal. He knew where he was this day, at the OBH. He'd been there lots of times before. He was familiar with the premises and the premises, as you yourselves have seen from the exhibits, are brick, concrete, glass. And when I asked him in that concluding part of his cross-examination: You know that assaulting someone can kill them? His answer was: I did know that, yes. Assaulting someone can lead to them dying. It can lead to someone dying - - he said. … We say that if someone pushes someone as hard as the accused pushed Andrew Marshall in that room, with rendered concrete pillars, wall-to-wall windows, brick floors, death is absolutely reasonably foreseeable as a possible outcome. Assaults can kill people. Forceful collisions with hard surfaces can kill people. And the accused, he knew it. … Now, if he did foresee Mr Marshall's death, or if you find that an ordinary person as I've described would have foreseen that death as a possible outcome, then you would find that the State has proved this was not an accident. Now, his Honour will go through that in more detail in the course of his direction on the law. But that's what the State needs to prove. It needs to prove that the death was not an accident. We don't need to prove what actually happened, as I say, was foreseeable, that he would break the window, the window would smash, he would land on the pavement and die. But even if you look at it that way, even if the State had to prove that, Mr Marshall's at most a metre from the window. He's 1.82 metres tall, 90 kilos. He's obviously not a small man. The window is 1.84 metres tall - high at its highest point. He must have practically covered the window from top to bottom. The whole of his body from at least his knees up, because you've got the measurements of the window, .47 metres high, 47 centimetres high the ledge was. Everything, his body was framed by that window. And the accused, weighing 150 kilos - 152, who knows his own strength, gives him a shove, however you find it to be, of significant force straight at it - straight at it and he went straight through it. When you picture that scenario in your heads, right up until that moment that the glass breaks, put yourself in the position of watching it. If you saw that happen wouldn't you think, 'That's dangerous'? And it's not a remote or speculative outcome. Glass breaks. We know glass breaks. Glass is an inherently dangerous thing. And I'd suggest to you that you should have no difficulty in finding that in the scenario that occurred here it was absolutely foreseeable what the accused man did. It's like picking up a gun that you've never seen before, not checking if it's loaded or not, not checking whether it's serviceable or not, pointing it in the general direction of a person and firing it. And then for good measure saying, 'The safety catch wasn't on'. It's an inherently dangerous thing. And if you push someone at it, it's a foreseeable outcome that it'll break. They're not hidden, unknown dangers. They're patently obvious and all of us know what glass does. Now, it's important that you don't mix up accident and intent and it's pretty easy to do when you're talking about foreseeability and all of those sorts of things. Accident is about foreseeable outcomes; what is foreseeable as a possible outcome. Intent, which I'm about to come to, is about something else (ts 809 - 811).
So, in the context of accident, it is clear that the prosecutor was putting the State case on the basis that both the accused and a reasonable sober person could have foreseen that death was a possible consequence of Mr Schmidt pushing Mr Marshall with the force which he used, given their location at that time. Significantly, the prosecutor resiled from the proposition that the State had to establish that it was foreseeable that Mr Marshall would meet his death by falling through the window, although she nevertheless invited the jury to arrive at that conclusion. However, she expressly put the State case more widely, by referring to the push occurring in a room with rendered concrete pillars, wall to wall windows and brick floors. Further, she expressly relied upon her cross‑examination of Mr Schmidt which was, as I have noted, conducted at all times at a level of generality, both with respect to intention and foreseeability, and which at no point descended to the proposition that Mr Schmidt intended to push Mr Marshall so as to cause him to break the window.
The breadth of the prosecution case on accident was reinforced a little later in the prosecutor's address, when she referred to evidence given by one observer, Mr Banning, to the effect that he was surprised when the window broke, and that he did not think Mr Schmidt's push was of a kind likely to break the window. In that context the prosecutor asserted:
What Mr Banning did tell you is that he had no doubt if there hadn't been a window behind Mr Marshall, he would have fallen down. And if you push someone with that kind of force that would knock them down - you've seen what kind of force the accused uses to push someone, knock them down. Death is undoubtedly, we say, a foreseeable possible outcome. And you would certainly accept, I'd suggest, that the accused admitted that (ts 813).
So, at least on the question of foreseeability of death, it is clear that the prosecution case was not limited to the foreseeability of death as a consequence of Mr Marshall breaking the glass and falling through the window to the street below.
The prosecutor then turned to the third major issue which she had identified - namely, the issue of intent. She asserted:
Because the charge of murder requires that the State prove not only that the accused unlawfully killed Mr Marshall, but that he did so with a particular intent. Now the State says and has always said that the accused did not necessarily intend to kill Mr Marshall. What the State says and what the State needs to prove is that he intended to do bodily harm of such a nature as to endanger Mr Marshall's life, or be likely to endanger it. Now, again, in his opening, my learned friend misquoted what the State says about this. There's an important difference between what the law is, which is what the State told you in opening, and how my learned friend expressed it. What the State must prove is that the accused intended to cause a bodily injury to Mr Marshall. Not a life-threatening injury as my learned friend put it. The State must prove a bodily injury. Then in addition and the State must prove that the injury that the accused intended to cause was objectively. That is an objective bystander would consider that injury to be of such a nature as to endanger life or be likely to endanger life. So - you see, my learned friend merged that test and said the State needed to prove the accused intended to cause a life-threatening injury. And that's not right. It is first of all that the accused intended a bodily injury. And objectively that injury is of that nature. And it probably seems like a pretty semantic distinction to you. And again, this is why lawyers aren't always the best people to judge things. But it's an important distinction. And if you think about it, it is common sense in one respect. If a person intends to injure someone else and they don't think about what the consequences of that injury are, even if it's obvious to everybody else, should they be relieved of the consequences of what they have done? The law says if you intend or if a person intends to do an injury to another person and that injury would be likely to endanger life or does in fact endanger life and the person dies, that is murder. And it's no defence to say, well, I intended the injury but I didn't know that they - their life would be endangered because of it. That's not a defence. Now, as I said, the State case isn't that the accused intended to kill Mr Marshall. He may have, he may not. The State doesn't seek to prove that he did. And the State acknowledges the burden is on it, and that you could not be satisfied beyond reasonable doubt that the accused did have an intention to kill. What he did do, the State says, is intentionally push him into window intending to hurt him. And the way he intended to hurt him was of such a nature that it endangered his life. And in fact it was likely to endanger his life. And we say he's guilty of murder on that basis. That he intended to do him a bodily injury of such a nature as to endanger his life or be likely to do so. We don't need to tell you exactly what that injury was. What we need to prove to you is that it was of that nature. And that nature's very clear in this case. Now, intent doesn't have to be coolly arrived at. It doesn't have to be contemplated then carried out. Intent can be formed on the spur of the moment in a fit of rage or it can be long formed. It can vacillate. It can be momentary or long lasting. It can be carried out with a full realisation of the consequences. Or those consequences might only really be appreciated afterwards.
It can be regretted or not, but what it can't be once carried out is taken back. And the State doesn't need to prove when the accused formed that intent, all the State needs to prove is that at the time that he assaulted Mr Marshall he had it and that's where what was going through the accused's mind is the issue. Did he personally have the intention to do a bodily injury to Mr Marshall? And you assess that the same as with other matters in this trial. Obviously you look at what he did, how he pushed him, how hard he pushed, the direction in which he pushed him, the environment, his mood. But you can also look at what he did do afterwards; he didn't look out the window to see where Mr Marshall was. He claimed that he didn't even know that he was seriously hurt at that point. He immediately turned and walked away. He wasn't in a state of shock; he was still aggressive and confrontational. No surprise, no change in his behaviour, just, 'What are you looking at?' and another assault upon an unsuspecting stranger. He didn't see what he could do for - do to help, which you think he might have done if he hadn't meant to hurt Mr Marshall. He didn't stay to find out that he had an ambulance coming, he left and on the way he texted, 'Sure thing' smiley face to his girlfriend. Her account of their conversation later that next day was that he said he pushed him and he fell out the window (ts 813 ‑ 815).

It is clear from this portion of the prosecutor's address that, as with foreseeability, on the issue of intention the State case was not limited to an intention that Mr Marshall break the window, or that he go through the window and suffer injury by falling to the street below. Rather, the case was left at an entirely general level - namely, that the jury could and should infer from the push that some form of bodily injury of the requisite character was intended by Mr Schmidt. In that context, the prosecutor asserted, somewhat cryptically, that the nature of the injury intended by Mr Schmidt was 'very clear in this case' (ts 814). However, at no point did the prosecutor enunciate with any clarity what the injury was that Mr Schmidt had intended to cause, or how Mr Schmidt intended that injury to be caused.
Cast at the level of generality presented in this case, the objective question as to intent; that is, whether the injury intended by Mr Schmidt was, objectively assessed, of a nature that would endanger or be likely to endanger the life of Mr Marshall becomes difficult for the jury to resolve. In relation to that issue, the prosecutor asserted:
If you find then beyond reasonable doubt that the State has proved the accused had the intention that I've referred to; that is the subjective intention, the personal intention to do that bodily injury then you move to the next part; that objective test of the nature of the injury. Now, we say you should have little difficulty in finding that objectively the injury he intended to cause did endanger Mr Marshall's life. Again, the force which all of the evidence proves that the accused inflicted upon Mr Marshall; the location, the environment, the direction of the push and what loomed outside that window? A five metre plus drop to the concrete footpath. All of you tell - all of that tells you that objectively the accused intended to hurt Mr Marshall in such a way that is that injury was of such a nature as to endanger, or at least be likely to endanger Mr Marshall's life (ts 816).
It is clear from this passage that the prosecution case included, but was not necessarily limited to, the assertion that Mr Schmidt intended Mr Marshall to suffer injury by falling through the window to the footpath below.

Defence closing

In the course of his closing address, senior counsel for Mr Schmidt contended that there was no evidence that Mr Schmidt had any specific intent at the time he pushed Mr Marshall. He described the push as 'impulsive' and 'reactive' (ts 825). He supported that submission by reference to the absence of any evidence of motive or of malice directed towards Mr Marshall, with whom Mr Schmidt had no prior association whatever. He suggested to the jury that if Mr Schmidt had wanted to harm Mr Marshall, he would have punched him, as he demonstrated when he punched the other man on his way out of the bar.
Given that the general thrust of the defence closing was to the effect that Mr Schmidt had no specific intent at the time he pushed Mr Marshall, it would not have been appropriate for counsel to dwell at any length on any specific intent with respect to either the bodily injury intended to be caused, or the manner of inflicting that injury and defence counsel did not do so. However, in the course of reviewing the evidence with respect to the extent of the force used by Mr Schmidt at the time he pushed Mr Marshall, senior counsel referred to Mr Banning's evidence to the effect that it was not the sort of push which would cause him to conclude that Mr Schmidt intended to put Mr Marshall through a window. Further, in the context of the submission that if Mr Schmidt had intended to harm Mr Marshall, he would have done so by punching him, senior counsel suggested that it was implausible to contend that Mr Schmidt intended harm by relying on the fact that 'there was a faulty window behind him and take the chance that the person might go out the window' (ts 855).
So, although the defence case was presented on the basis that Mr Schmidt had no specific intent at the time he pushed Mr Marshall, in the two instances to which I have referred, defence counsel responded to a prosecution case put on the basis that Mr Schmidt intended to push Mr Marshall through the window, although, as I have pointed out, the prosecution case was in fact put on a more general basis.

The judge's directions

After the usual general directions with respect to the burden and standard of proof, the drawing of inferences and so on, the trial judge gave the following direction with respect to the elements of the offence of murder:
The elements that the State must prove beyond a reasonable doubt are these; (1) that the accused killed Andrew Kirk Marshall, which is to say that the accused caused the death of Andrew Kirk Marshall. (2) The killing was unlawful. (3) At the time of the act causing the death the accused himself had the intention to cause bodily harm. (4) That the bodily harm intended by the accused was objectively of such a nature as to endanger or be likely to endanger Mr Marshall's life (ts 896).
The trial judge then addressed each of those elements in turn. In relation to the first element, he suggested to the jury that they may have little difficulty in concluding that Mr Schmidt's conduct was a substantial or significant cause of Mr Marshall's death.
In the context of the second element, which requires the killing to be unlawful, the trial judge directed the jury in relation to accident. He directed that:
In order to prove that Mr Marshall's death was not an accident, the State must prove beyond a reasonable doubt either that the accused foresaw, actually foresaw Mr Marshall's death as a possible outcome of his actions. Or that an ordinary person in the position of the accused would reasonably have foreseen Mr Marshall's death as a possible outcome. A possible outcome for this purpose is not a remote or speculative outcome (ts 898).
The trial judge then turned to what he had characterised as the third and fourth elements of the offence of murder, concerning intent. Because the adequacy of the directions which he gave on that subject is central to this appeal, I will set out the directions which he gave on that topic in full:
I turn then to the next element, the element of intending to cause a bodily injury. I remind you for this element, the State must prove beyond a reasonable doubt that the accused himself intended to cause bodily injury to Mr Marshall. Bodily injury means what it sounds like, an injury to a person's body. Intention is something that typically must be determined finally by reference to inference. I've reminded you already, I've told you already what finding inferences entails in the criminal law. It can only be determined by looking at the circumstances of the case and the facts as you find them to be. Intention is not the same as motive. The State does not have to establish any motive for the accused's act. Where a motive has been shown, if it has been shown, it may assist with determining whether or not there was an intention. But establishment of a motive is not required for the purpose of establishing intention. Further, intention does not require premeditation or planning. It can be on the spur of the moment. It can be regretted after the event. Now, here the State case on intention is that on all the evidence you'll be satisfied beyond a reasonable doubt, the matter is of course for you, the accused's had the required intention, in particular by reference to the evidence that the accused's mood is one of upsetedness, following his exchanges in the top bar prior to the incident with Woods; what the nickname the accused used for Mr Paki, who he treated as a brother. Evidence that included evidence of the accused himself as to upsettedness, or the degree of upsettedness as a form of anger. The evidence, they say, is consistent with the accused's reaction to what occurred as one of disbelief. The accused saying to Mr Marshall to, 'Fuck off' prior to the physical exchange, the pushing exchange, between them. Evidence as to that exchange has been a two-handed one and in the direction of the window, pushing to and through it. The evidence as to the effort the accused used, including that of Mr Sylva when the evidence of Mr Sylva is considered in its entirely, as well as evidence of the accused himself. The evidence as to the - the evidence of Dr James as to what force, described as Dr James did, was required to break the plate glass windows in the top floor bar of the OBH in his tests. And the evidence of how the accused behaved after the incident, walking away as he did and punching and pushing another man as he did, glancing in the direction of Mr Marshall on the pavement as he did and leaving the accused's mobile phones at home as he did. As well as what the prosecution says you should find as to the message sent to Ms Cooper, the 'sure thing' message with a smiley face added. Here, however, the defence says you will not be satisfied beyond reasonable doubt, again the matter is for you, that the accused had the required intention on all the evidence. In particular, the accused's evidence as to what he did to Mr Marshall as a pushing away to have nothing further to do with him, as a spur of the moment matter, using evidence, on all the evidence, much less than the full force of which he might have been capable. But rather to fend Mr Marshall off as a rugby player would, where the accused was a rugby player and which the defendant says you should consider with the evidence going to what force the accused was capable of. The evidence of Mr Sylva and Mr Barnes as to how much of a push they saw the accused give to Mr Marshall. The evidence of Mr Sylva and Mr Banning as to whether Mr Marshall was sitting or standing, indicating Mr Marshall was not pulled up from a seated position, the defence says. The evidence as to the window breaking as it did, when safety windows would not have broken in that way. The lack of any support for an intention in a motive to cause harm to Mr Marshall or to protect the girls at the table. The lack of support for any intention that might come from the accused being in a fit of rage, the defence says, given the evidence, they say, points away from any such rage evidence from Mr Sylva and Ms Barnes, Mr Barnes' sister. It is important in all of this and I need to remind you of this, both counsel acknowledge this, that the State does not contend that the accused had an intention to kill Mr Marshall. That is not any part of the State case. The intention, the State says, that the accused himself had is the intention to cause bodily harm, as I've described it. Now, I turn to the next element, the element of bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed. If you are satisfied of this beyond a reasonable doubt then this element has been met. It's important you note it's not required that the accused knew the injury intended was of this nature. The matter is determined objectively. The State does not contend that the accused knew the bodily injury the accused says - the prosecution says the accused intended to inflict was of that character. And of course, like all the elements, it must be proved beyond a reasonable doubt. Here, the State case is that you'll be readily satisfied beyond a reasonable doubt, the matter is of course for you, on all the evidence that the injury intended was objectively of the required character, pointing to the evidence of what happened in the top bar involving Mr Marshall that night. Here, the defence says, however, that you'll not be satisfied beyond a reasonable doubt, the matter is for you, on all the evidence that the injury intended was of that objective character. In particular, by reference to what the accused intended to do, pushing Mr Marshall away, as the accused testified. The evidence as to the window broken that I've described the defence previously relying upon, and the evidence of the time for Mr Marshall to respond to try to right himself. Of Mr Marshall [sic Mr Schmidt] in his first statement to the police where he acknowledged in his evidence that that was the truth, even although he subsequently sought to explain himself. And of the video from outside the OBH of the glass flying out followed a short, a very short time later by the tragic sight of Mr Marshall falling out (ts 899 - 901).
It is significant to note the level of generality at which these directions were given. No attempt was made to identify the bodily injury which the jury might find Mr Schmidt intended to cause, or as to the manner in which the jury might find Mr Schmidt intended to cause Mr Marshall bodily injury. No direction was given to the effect that unless the jury was satisfied beyond reasonable doubt that Mr Schmidt intended to propel Mr Marshall's body into the window with sufficient force to break the window, there was no other way open on the evidence by which it could be reasonably concluded that Mr Schmidt intended to cause bodily injury to Mr Marshall of such a nature as to satisfy the necessary element of the offence of murder.
After the jury had retired, counsel for each of the prosecution and the defence raised matters upon which redirections were sought. In that context, junior counsel for Mr Schmidt, Mr Watters, sought a redirection on the subject of intent. He submitted:
[W]hat the State's case here is that there's a need for the jury to be clearly told that the bodily injury here on our facts is not the push. But the bodily injury is the bodily injury that the deceased would suffer as a result of going out of the window and striking the footpath. And the State's case here is that there was an intention for the deceased to go out the window. And where one has particular regard to the State's case as opened and closed, that would appear to be their case. They closed it very strongly at the bottom of page 796 of the transcript, where my learned friend said - what there wasn't time for of course, we say, is any tumbling or stumbling or anything of that nature. You see, what the accused did is he didn't just push him towards the window. He pushed him at it, into it and through it. There is no room, we'd submit, for any other conclusion in this case (ts 916).
Junior counsel then referred to references in the opening address of prosecuting counsel which were said to support the proposition that the State case had always been put on the basis that the relevant intent was an intent to cause injury by pushing Mr Marshall through the window.
After referring to the decision in Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91, junior counsel submitted:
[W]hat we would say on our facts is that it must be shown that the accused intended the deceased to go through the window. Otherwise he would never suffer such bodily injury from a mere push (ts 917).
Junior counsel went on to submit that the jury should be directed that the prosecution case was put on the basis that Mr Schmidt intended to cause the bodily injuries which occurred when Mr Marshall struck the footpath below. The submission concluded in the following terms:
[W]e say here that the jury need to be told that on the facts of this case that the bodily injury is not the push. The bodily injury is what occurred afterwards (ts 918).
Because of the importance to the issues in this appeal of the interchange between prosecuting counsel and the trial judge which followed that submission, it is appropriate to set that interchange out in full:
FORRESTER, MS: Your Honour, I take some objection to the way my learned friends have characterised the State's closing. The State made it extremely clear that the bodily injury intended was to be caused as a result of a push in the environment in which is it was undertaken, that is, concrete, brick, glass. That Mr Banning's evidence in that regard is connected in the sense that the push was hard enough that he would have fallen to the ground and that the accused himself foresaw that an assault can indeed cause all sorts of injury. But indeed can also kill.
FORRESTER, MS: We said this at page 810. That was in relation to whether the death was an accident or not, but the whole case is - the State doesn't need to prove the circumstances that actually occurred. The State needs to prove that the event is the death. And in relation to this element; that is, of bodily injury and of such a nature as to endanger or be likely to endanger life, the State says at page 814: What he did do, the State says - - and this is about half-way down the page. And I discuss it all the way through page 814, but half-way down the page I say, about midway through that paragraph: What he did do, the State says, is intentionally push him into - - and it's missed the word "that" - - window intending to hurt him and the way he intended to hurt him..........was of that nature. Now, there is no authority and the State has not run its case on the basis that we have to prove that the bodily injury was in fact that he pushed him out of the window and landed on the pavement, and he intended to cause him the injury by his landing on the pavement. By the push he intended to cause him a bodily injury. The State need not specify that injury. It simply needs to prove the next element, which is the nature of that injury was of such a nature as to endanger life or be likely to endanger life. So we would submit that your Honour did direct in relation to that and indeed it was in accordance with the document that my learned friends had viewed prior to it being provided to you and they had no comments in relation to it.
SIMMONDS J: Yes, I've thought about that.
FORRESTER, MS: I mean, obviously.
SIMMONDS J: I think to be fair to your friend, what your friend was saying was that the - with respect, he was putting to me the proposition that I hadn't directed on the State case as the State case had been made. It seems to me that that was indeed the - my endeavour was to put it to them in terms of the State case being made. It might indeed be appropriate for me to pick up on the paragraph that is the third complete paragraph on page 814: The State's case is that he intended to push him into the window, intending to hurt him - - which aligns, in my reading of it, with the passage on which your friend - to which your friend referred, the bottom of page 796: And he didn't just push him towards the window - - as in a tumble falling short of the window - - he pushed him at it - into it and through it. The 'through it' is the only bit that might conceivably go a bit further, but that might be explained as the mechanism of 'hurt'. The mechanism of 'hurt' could include being injured by shards of glass, without necessarily falling through, or the risk, which matured in the event, that it'll be more than shards of glass, it's actually falling through the window onto the pavement.
FORRESTER, MS: We also put it though as impact. And your Honour summarised in some detail the respective cases in this - in relation to this element.
SIMMONDS J: Yes.
FORRESTER, MS: I've written a number of them down. And in relation to the other environmental factors, like the concrete pillars, the brick floors.
SIMMONDS J: Yes.
FORRESTER, MS: Those are all factors. He intended to hurt him, to cause a bodily injury by that contact.
SIMMONDS J: By - - -
FORRESTER, MS: The fact that he pushed him at the window is not so much intent, but what he actually did. The intent is something - - -
SIMMONDS J: Yes, but from which it might be then inferred that he intended to do what - yes. All right.
FORRESTER, MS: Yes.
SIMMONDS J: All right.
FORRESTER, MS: I don't have a difficulty, by the way, if my learned friends seek a redirection in relation to those two elements because, obviously, they are significant issues in this trial.
SIMMONDS J: Indeed they are.
FORRESTER, MS: But I do object to the characterisation of the State's case as bodily harm by way of hitting the footpath (ts 918 ‑ 920).

This interchange reinforces the conclusion which I have drawn from the terms of the prosecutor's opening and closing addresses - namely, that while the prosecution case included the proposition that Mr Schmidt manfiested an intention to cause bodily injury by pushing Mr Marshall into the window so as to cause the window to break, the State case was not so limited and extended to an intention to cause bodily injury in some other unspecified way as a result of the push occurring in proximity 'to the other environmental factors, like the concrete pillars, the brick floors' (ts 920).
The trial judge recalled the jury from their deliberations and gave redirections on a number of topics. On the subject of Mr Schmidt's intention, the following redirection was given:
The final and fifth point has to do with what you will have appreciated, given the amount of attention it received in counsel's closings, both prosecution and defence, was the matter of intention. The intention to cause bodily injury is so critical. That is one the elements, critical in that sense, in relation to the offence of murder. Now, the State case, you'll recall, I described as I did. I shall give you a little more detail about it and I shall also give you a little more detail about the defence case in relation to the same subject matter. The State case was that the accused, Mr Schmidt, pushed the deceased into the window intending to hurt him. The accused did that intending to hurt him and matters relevant to that were as you'll remember the prosecution indicated. The injury, of course, must also satisfy the other requirement that it was such a nature that it endangered his life, or was likely to do so. And you'll remember how I directed you on that. What the defence says must also be a matter that you think about, again in the same way you think about what the prosecution case was, to assist, if it does, as I've indicated. The defence case was of course that the accused did not intend any harm. And the defence case draws your attention to the evidence of the accused that he did not intend to push so hard at Mr Marshall as to push him through the window. That indeed the accused was not paying any attention to his surroundings at the time he pushed at Mr Marshall to fend him off and in particular wasn't paying any attention to the window and its location relative to where the accused was pushing Mr Marshall. So those matters are borne in mind together. The evidence upon which the prosecution relies for the case they put and what the defendant says in relation to that case (ts 929).
It will be observed that the redirection was not given in the terms sought by counsel for Mr Schmidt. In substance, the redirection was no more specific than the direction which had already been given, and only varied from that direction by a specific reference to the evidence given by Mr Schmidt as to his intention at the time of the push; that he did not intend to push Mr Marshall through the window.
After the jury had been deliberating for some time, a question was delivered to the trial judge in the following terms:
Could we please have a further clarification on the elements within the charge of murder and manslaughter, specifically unlawful killing, and the fourth element of murder. Our preference would be to have these clarifications in writing to allow us to refer at will (ts 949).
The trial judge advised counsel that he was uncertain as to precisely what the jury required. As a result, the trial judge recalled the jury and first asked whether they wanted a description of all the elements of murder and manslaughter, or only the matters specifically identified: namely the element of unlawful killing and the objective likelihood of Mr Schmidt's intended bodily injury causing Mr Marshall's death. The forewoman of the jury responded that it was only the two specific points in the question upon which the jury required clarification.
The trial judge responded by foreshadowing a repetition of the directions he had previously given on those topics. In response, the forewoman asked:
Is there an ultimate way of explaining it, is our question (ts 958)?
The trial judge responded with the assertion that it was not clear what they were uncertain about in relation to the elements they had identified. He suggested that the jury might like to return to the jury room and consider whether greater specificity could be provided. The jury retired, and then provided the trial judge with a question in the following terms:
Can you please 'repeat' your definitions of the elements of murder (ts 961)?
In response to that question, the trial judge recalled the jury and read to them the transcript of his previous direction on what he had described as the four elements of murder.
It seems clear from the initial form of the question from the jury, and from the forewoman's response to the question posed by the trial judge, that the jury were having difficulty comprehending the directions they had been given in relation to accident and in relation to the aspect of intention which required the bodily injury intended by Mr Schmidt to be of such a nature as to endanger, or be likely to endanger Mr Marshall's life in order to sustain a conviction of murder. Given the generality in which the terms of the previous directions had been cast, this is, with respect, not surprising. However, after the trial judge suggested that he would repeat his earlier directions, in the result, that was all the jury requested, and that was all they received.
Later in the day the jury returned a verdict of guilty of murder.

The sentencing proceedings

As I have foreshadowed, because the appeal against conviction should be allowed and a retrial ordered, it is neither necessary nor appropriate to consider Mr Schmidt's appeal against sentence. However, the course of the sentencing hearing sheds light on the difficulties created by the way in which the trial was conducted and the manner in which the issues were left to the jury.
Prior to the sentencing hearing, the parties filed written submissions. The written submissions filed on behalf of the prosecution include the following submissions:
6.By their verdict, the jury must have been satisfied beyond reasonable doubt:
a.That the death of Mr Marshall was foreseen by the offender, or reasonably foreseeable by an ordinary person;
b.That the offender, by his actions, intended an injury to Mr Marshall;
c.That the injury intended by the offender was objectively of such a nature as to endanger Mr Marshall's life or be likely to endanger his life.
7.The accused, in his evidence, admitted that:
a.He saw himself as a 150kg man with a lot of muscle
b.That he could bench press at least 200kg and squat press 300kg, with an ability 2-3 weeks before the offence to do 6-8 repetitions of a 170kg bench press
c.He was '…just a bit annoyed' when he pushed Mr Marshall
d.He couldn't say how hard he pushed Mr Marshall but it wasn't 'overly dramatic'
e.His intention was for Mr Marshall to go away
f.As at 8 May 2011 he was 'very strong'
g.He pushed Mr Marshall with 'a bit more than a medium push'
8.The State acknowledges that it could not be proven beyond reasonable doubt that the offender pushed Mr Marshall with the specific intention of him going through the window. However:
a.the surroundings in which he pushed Mr Marshall;
b.the direction in which he pushed him;
c.the force with which he pushed him (and must have pushed him, having regard to the expert evidence);
d.the fact that he was well aware of the force he was capable of applying;
all demonstrate, as the jury must have found, that the offender did, contrary to his evidence, intend to cause bodily injury to Mr Marshall and that the injury intended to be done was of such a nature as to be likely to endanger Mr Marshall's life or be likely to do so.
Two points must be noted arising from these submissions. First, the filing and service of this written submission appears to be the first occasion upon which the prosecution adopted the position that it could not be proven beyond reasonable doubt that Mr Schmidt pushed Mr Marshall with the intention of him going through the window and falling to the pavement below. Having regard to the terms of the prosecutor's opening and closing addresses which I have identified, it is clear that during the trial, the prosecution did not disavow the proposition that the jury might find that Mr Schmidt's intention was to push Mr Marshall through the window causing him to fall to the pavement below. No explanation for this change of position has been proffered.
Second, the concession made by the prosecution for the purposes of sentence leaves no identifiable basis upon which the jury's verdict of guilty of murder could be sustained. That proposition is perhaps best illustrated by asking rhetorically: if Mr Schmidt did not intend to push Mr Marshall into the window such that it broke, what was the bodily injury which Mr Schmidt intended to cause Mr Marshall, in what manner was it intended by Mr Schmidt that the injury be caused, and how could it reasonably be concluded that the injury which Mr Schmidt intended to cause was of such a nature as to endanger or be likely to endanger the life of Mr Marshall?
At no point during the trial or, as will be seen, during the sentencing hearing, did the prosecution endeavour to answer those questions. The closest the prosecutor got, at any point, to addressing those issues was her assertion that the push took place in proximity to concrete, bricks and glass. The fact that Mr Schmidt pushed Mr Marshall in such an environment is, of course, relevant to the foreseeability of harmful consequences possibly flowing from the push, and the prosecutor cross‑examined to that effect. However, the issue relating to the subjective intention of Mr Schmidt is, in the circumstances of this case, rather different to the issue of foreseeability of harm.
The trial was correctly conducted on the basis that the issue of intention required the jury to form a view as to the state of Mr Schmidt's mind at the time of the push, and as to whether he intended to cause Mr Marshall bodily injury. In the circumstances of this case, the nature of the injury, if any, which Mr Schmidt intended to cause, cannot be divorced from the manner in which Mr Schmidt intended that bodily injury would be caused to Mr Marshall. It is clear that the impact of Mr Schmidt's hands on Mr Marshall's body could not, of itself, been intended to cause, or even be likely to cause, bodily injury of the requisite character. Any hypothesis consistent with guilt required the jury to be satisfied beyond reasonable doubt that Mr Schmidt intended that his push would cause Mr Marshall to impact with some other feature of the environment which would cause an injury of the requisite character. In the context of this case, if an impact causing the window to break is excluded from consideration, the jury would have to have been satisfied that Mr Schmidt intended (not merely foresaw as a possibility), that Mr Marshall strike his head or perhaps some other part of his body on a concrete pillar, or the floor, or the glass (without breaking it) with such force as to cause a bodily injury which was of such a nature (objectively assessed) as to endanger or be likely to endanger his life. That proposition was never specifically put at any point by the prosecutor during her opening or closing address, nor was it put to Mr Schmidt in cross‑examination. Nor, for that matter is it a proposition that was reasonably open on the evidence.
If an intention to propel Mr Marshall into the window with sufficient force to cause the glass to break, thereby creating a risk of bodily injury from either the broken glass or a fall to the pavement below is excluded, any other form of bodily injury, or mechanism by which such bodily injury could be caused, while perhaps possible and therefore foreseeable, was not so obvious or probable as to sustain an inference beyond reasonable doubt to the effect that Mr Schmidt intended to cause an injury of such a nature as to endanger or be likely to endanger Mr Marshall's life by such a mechanism.

Foreseeability and intent

It is appropriate to digress to consider, at a general level, the distinction between foreseeability and intent, and the relationship between those two concepts. In the context of criminal proceedings, foreseeability is relevant to the assessment of whether an event has occurred by accident, with the result that a person is not criminally responsible for that event (Criminal Code (WA) (the Code), s 23B). If the prosecution establishes that the accused foresaw, or that a reasonable person in the position of the accused would have foreseen that a possible consequence of his or her actions was the event which in fact occurred, accident will have been excluded. When intent is a specific element of an offence, such as the offence of murder created by s 279(1)(b) of the Code, the prosecution must establish that the accused subjectively intended to procure a particular result - namely, a bodily injury of the requisite character as a consequence of his or her actions. So, in many respects foreseeability and intent are quite different concepts.
However, the concepts are also related in a practical sense. If an event is not foreseeable, it cannot have been intended by the accused, by definition. Conversely, the fact that an event was foreseeable, will not, of itself, compel the conclusion that it was intended. But if the event was the obvious and probable consequence of the actions of the accused, an inference of intent may be drawn.
To take an obvious example, if a person deliberately fires a gun at the head of another at close range, or stabs another in the upper body on multiple occasions, the consequences of those actions are so obvious and probable, that an inference that those consequences were intended can readily be drawn. At the other end of the spectrum, a single punch to the head has often been viewed by juries as not giving rise to the foreseeable consequence of death, let alone the intended consequence of death, which is the reason the legislature created the offence of unlawful assault causing death (s 281 of the Code). The distinction between these examples turns upon the extent to which the event which occurred was the obvious and probable consequence of the actions of the accused. The mere fact that the event was a possible consequence of the actions of the accused will not ordinarily of itself sustain an inference that it was the intended consequence, although the more obvious and probable that the event would be a consequence of the actions of the accused, the more readily an inference of intent can be drawn.
If the consequences which would likely flow from Mr Marshall being propelled through the window are excluded from consideration, the prospect of Mr Marshall suffering an injury which would endanger or be likely to endanger his life as a consequence of being pushed in the chest in the vicinity of hard and fixed objects was not so obvious or probable as to be capable of sustaining an inference that he intended to cause such an injury.

The sentencing hearing - continued

The difficulties created by the prosecution's change of position with respect to the Mr Schmidt's intent at the time of sentence are apparent in the following interchange between the prosecutor and the trial judge during the course of the sentencing hearing:
SIMMONDS J: All right. Just one moment. I take it that the state does accept for the purpose of the sentencing that there is no finding it would press me to make that Mr Schmidt was aware of the life-threatening character of what would happen at the collision of Mr Marshall with the window?
FORRESTER, MS: In the sense, your Honour, that the state does not allege that he actively intended to push Mr Marshall out of the window.
SIMMONDS J: I'm going a little further than that, Ms Forrester.
FORRESTER, MS: Yes.
SIMMONDS J: The point I'm reaching is that it is not contended by the state that on the evidence I should find - and I believe the matter would be one of aggravation, so it would be one I would have to find beyond a reasonable doubt - that Mr Schmidt was aware that when Mr Marshall hit the glass there was a risk that his life would be threatened in some way by that hit, whether going through the glass or otherwise.
FORRESTER, MS: Can I - and I mean no disrespect - my query is this: if your Honour is requesting information as to what we call the fourth element in the course of the trial in relation to the fact that Mr Schmidt did intend an injury and objectively - - -
SIMMONDS J: No.
FORRESTER, MS: Well, accident has been disproven, so there was - - -
SIMMONDS J: I realise that, and I appreciate that the distinction I'm asking you to draw is a very, very fine one indeed, but you may be aware I have recently had pressed on me in respect of a form of murder like this in respect of another offender, and in fact that led to a trial on the issues, whether notwithstanding there was no intent to kill, the offender should be seen by virtue of the circumstances or otherwise to have an awareness of the risky character - the life-threateningly risky character of what was involved.
SIMMONDS J: It seems to me that all the 279(1)(b) requirement - or form of murder involves is an intent to do an injury. It does not involve, by that fact alone, awareness or intention. Awareness will fairly straightforwardly lead to a finding of intention, I can see, but it is, it seems to me, short of a finding of intention, which takes me back to my original question.
FORRESTER, MS: Your Honour, perhaps I can say this. In terms of awareness, the offender gave evidence at his trial that he was aware of the dangers of assaults in such circumstances, very aware of them, and I can take your Honour to particular pages.
SIMMONDS J: If you would.
FORRESTER, MS: If I might have a moment, your Honour.
SIMMONDS J: Yes.
FORRESTER, MS: At the commencement, your Honour, of his evidence - sorry, at the commencement of cross-examination, your Honour, he is asked - - -
SIMMONDS J: Perhaps if you - - -
FORRESTER, MS: Page 695.
SIMMONDS J: Thank you.
FORRESTER, MS: Sorry, your Honour, at page 695 he was asked about his training in relation to rugby league, kick-boxing and boxing. He was asked this in relation to his training as a bouncer:
FORRESTER, MS: And as part of the training was it drilled into you that assaults are dangerous?---Yes, it was.
FORRESTER, MS: And that there are lots of things that can happen as a result of an assault upon any person?---Yes.
FORRESTER, MS: You also knew full well from that stint as a crowd controller or a bouncer that once alcohol is involved in assaults pretty much anything can happen?---That's right.
FORRESTER, MS: Then I asked him about drugs, which perhaps didn't take it any further. I returned to that at the conclusion of cross-examination, your Honour, and this appears at page 730 where it was said to him:
FORRESTER, MS: And yet you knew that assaulting someone could do all sorts of harm in a general sense?---Yes, I did.
FORRESTER, MS: You knew that?---But at the time of the incident I wasn't thinking about anything like that.
FORRESTER, MS: About doing?---I wasn't thinking of hurting, not at all.
FORRESTER, MS: You knew that assaulting someone can kill them, didn't you?---I did know that, yes, assaulting someone can lead to someone dying.
FORRESTER, MS: That's the extent of the awareness, your Honour, and we appreciate that it is in a general sense.
SIMMONDS J: Yes.
FORRESTER, MS: But that is the extent of the evidence in relation to that. That of course is different to the intention, as your Honour has quite clearly set out, so that's the extent to which the state puts it.
SIMMONDS J: Which is to draw, if I may say so, a still further and fine distinction from the state of the evidence as I was asking you about. All right, that's helpful. So that the focus, the state says, should be by me on pages 695 and 730 together with all the other evidence (sentencing ts 56 ‑ 59).

It is common human experience that a push may not cause or may not be intended to cause any bodily injury to another. Whether a push is intended to cause a bodily injury will depend upon an assessment of all the surrounding circumstances, including the force that was used, the position of the victim and the surrounding environment. Two men pushing and shoving each other may not evince an intention to inflict any bodily injury. Conversely, an intention to cause a bodily injury may well be inferred where a person is deliberately pushed into a fire.
As the Chief Justice and Buss JA have each amply demonstrated, the State's case as to the bodily injury the appellant intended to cause Mr Marshall was put very generally.
This is apparent from the prosecutor's cross‑examination of the appellant and her closing address. It is manifest in the prosecutor's submissions to the learned trial judge in response to the redirections sought by defence counsel after the summing up, when she said:
The State made it extremely clear that the bodily injury intended was to be caused as a result of a push in the environment in which is [sic] it was undertaken, that is, concrete, brick, glass (ts 918).
The prosecutor went on to remind his Honour of what she had said in her closing address:
What [the appellant] did do, the State says, is intentionally push him into [the] window intending to hurt him (ts 814).
The prosecutor, in effect, told his Honour that the State considered that in order for the appellant to be convicted of murder, it was not essential that it prove that the appellant pushed Mr Marshall through window intending him to suffer a bodily injury when he landed on the footpath. The prosecutor said:
[The State] simply needs to prove the next element, which is [that] the nature of that injury was of such a nature as to endanger life or be likely to endanger life (ts 919).
I do not understand the prosecutor to be disavowing this scenario. Rather, the prosecutor was saying that it was not to her mind the only way the appellant could be convicted as charged.
His Honour sought some clarification from the prosecutor in regard to what the alleged mechanism of 'hurt' was (ts 919).
The prosecutor's response underlines the general nature of the State's case on intention. The prosecutor agreed with his Honour's suggestions that 'hurt' could mean an injury caused by shards of broken glass or by Mr Marshall falling through the window onto the footpath (ts 919 ‑ 920), and added.
We also put it though as impact … in relation to the other environmental factors, like the concrete pillars, the brick floors (ts 920).
In order to properly decide whether any intended bodily injury was of such a nature as to endanger or be likely to endanger Mr Marshall's life, the jury needed to decide what bodily injury, if any, the appellant intended to cause Mr Marshall. An important factor to be considered was the level of force used by the appellant. Another important factor was how the bodily injury was to be caused.
If the appellant intended to cause Mr Marshall a bodily injury by pushing him to the floor or into a concrete pillar or the window, without breaking it, it may well be that the jury would have concluded that any intended bodily injury was minor and not of a nature to endanger or be likely to endanger life. It is difficult to see how these scenarios could justify a verdict of murder.
On the other hand, if the appellant pushed Mr Marshall into the window, intending to inflict a bodily injury as a result of him going through it, a murder verdict could be justified. To my mind, this was the only factual scenario that would have justified a murder verdict.
The learned trial judge's direction to the jury in his summing up unfortunately reflected the way the State put its case and was pitched at a high level of generality. His Honour's directions on intention are quoted in full in the Chief Justice's reasons at [53]. As can be seen, no attempt was made to identify the bodily injury the appellant intended to cause or how it was to be caused.
The appellant's junior counsel at trial in effect raised these points and sought a redirection. With great respect to the learned trial judge, the redirection that he gave would not have assisted the jury. The redirection did not identify the bodily injury the appellant intended to cause Mr Marshall or how it was to be caused. His Honour told the jury that the State's case was that the appellant pushed Mr Marshall into the window, intending 'to hurt him' (ts 929). The words 'to hurt him', without further explanation as to their meaning, are vague and do not reflect the statutory language of s 279(1)(b) of the Code. To hurt someone is not necessarily to inflict a bodily injury.
Thus, his Honour failed to properly instruct the jury as to the element of intention. The direction left the jury to decide the question of the appellant's intention on a far too general basis. Without a proper consideration of the appellant's intention, there cannot be a proper consideration of the nature of the bodily injury the appellant intended to cause Mr Marshall. In these circumstances, there is a real risk that the jury's verdict was flawed. In my opinion, there has been a miscarriage of justice.
It follows that ground 2 must be upheld and the conviction for murder set aside. I will deal with the question of whether a new trial should be ordered and, if so, on what charge, later in these reasons.

Ground 1

Ground 1 alleges that the jury's verdict was unreasonable and cannot be supported, having regard to the evidence adduced at trial. This contention is to be approached on the basis that the jury was properly directed as to the law and facts by the learned trial judge.
This court must allow an appeal if, in its opinion, the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The expression 'unreasonable or cannot be supported' is, in substance, the same as 'unsafe and unsatisfactory'.
In JRNT v The State of Western Australia [2011] WASCA 183, I set out the relevant legal principles which must be applied when considering whether a jury's verdict of guilty is unreasonable and cannot be supported:
The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen (2007) 230 CLR 559:
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (emphasis in original)
This court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen (2011) 85 ALJR 571. Full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.
The test laid down in M v The Queen must be applied in this way:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495) [59] ‑ [61].
The appellant submits that it was not reasonably open to the jury to exclude beyond reasonable doubt that:
(a)the death was accidental; and
(b)the appellant did not form the intent to cause Mr Marshall a bodily injury of such a nature as to endanger or be likely to endanger Mr Marshall's life (white AB 12).
I have carefully reviewed the trial record. In cases such as this, the jury has a considerable advantage in having seen and heard the witnesses, especially those witnesses who could testify as to the critical events at the Ocean Beach Hotel (OBH), being Amanda Barnes, Mark Sylva, Dean Banning, Joseph Barnes and the appellant. The jury also had a view of the premises.
There was no dispute as to the general circumstances. The appellant was at the OBH in the afternoon and evening of 8 May 2011, in the company of others, including Stella Paki and Leila Macleod.
At the time, the appellant weighed 152 kg and was strong. He had been to the OBH before and could be taken to be familiar with its layout. Mr Marshall and the appellant were strangers to each other. On 8 May 2011, Mr Marshall weighed approximately 90 kg.
There was no dispute that at around 9 pm, Stella Paki and Leila MacLeod were at a table in the upstairs bar of the OBH, near a floor to ceiling window that looked out onto Eric Street, Cottesloe, which was about 5.73 m below. Mr Marshall approached the table, apparently to speak to the two women. The appellant walked up to Mr Marshall and, almost immediately, pushed him with sufficient force to propel him through the window, causing him to land on the footpath below, as a result of which he suffered fatal injuries. Most of the external windows in the upstairs bar were made of safety glass. However, the one through which Mr Marshall was propelled was not made of safety glass.
As might be expected, there was some variation as to the precise circumstances in which the appellant pushed Mr Marshall but, in general, the evidence was more or less consistent.
Ms Barnes, who was positioned behind the appellant, saw his hands out at about shoulder level, palms facing outwards. She testified that after the window broke, the appellant's arms dropped (ts 186, 198).
Mr Sylva described the appellant applying a 'frontal push' to Mr Marshall 'like he [was] passing a basketball' (ts 227, 228). He said that it was a 'fairly hard forceful push' (ts 228). In cross‑examination, he described a 'shove', with the appellant apparently using two hands (ts 276).
Mr Banning said that the appellant grabbed Mr Marshall by the front of his shirt, with two hands, and pushed him 'rearwards' towards the window, causing it to smash (ts 320). He said Mr Marshall was a maximum of one metre from the window when he was pushed (ts 321, 335). He described it as 'a pretty big push' (ts 321). Mr Banning said he thought the push was not accidental (ts 334). He agreed with the proposition in cross‑examination that he was quite surprised when he saw the window break (ts 335).
Mr Barnes said that he saw the appellant's shoulders move in a pushing motion towards Mr Marshall. He described it as 'a medium push, I'm guessing'. He estimated that Mr Marshall was 'probably 60 centimetres or more' from the window when he was pushed (ts 379).
The State adduced expert testimony from Ralph Nicholas James, who holds a doctorate in experimental physics and is a lecturer in physics and biophysics at the University of Western Australia. The purpose of his evidence was to identify and measure the force required to break the window through which Mr Marshall fell (ts 524). The window Mr Marshall fell through was 5.65 mm thick. Force is measured in newtons, which are ten times the force in kilograms (ts 550). Dr James conducted tests on a number of windows at the OBH, including a window which was very nearly of the same thickness as the window Mr Marshall fell through, being 5.79 mm thick. In Dr James' opinion, a force of between 1,000 and 2,000 newtons, at a speed at or greater than 2 m per second, was required to break the window (ts 555).
The appellant testified that when he went over to the table, he saw Stella Paki and Leila Macleod speaking with Mr Marshall (ts 678). The appellant told Mr Marshall to 'fuck off'. Mr Marshall said something to him in reply (ts 680, 681). The appellant said he pushed Mr Marshall with his left hand to the 'chest shoulder'. He described it as 'like a rugby fend off, like a push' (ts 682). The appellant said he did not push Mr Marshall in any particular direction and that the push was not 'overly dramatic', but he was unable to say for sure how hard he pushed him. The appellant testified that he 'didn't … intend to cause any harm to [Mr Marshall] whatsoever' (ts 682) and he denied intending to push him through the window or into it. In cross‑examination, the appellant said that the push was 'a general just "go away"' (ts 712). He estimated that when he pushed Mr Marshall, he (Mr Marshall) was one to two metres from the window, but he accepted that he could have been half a metre to one metre from the window (ts 714 ‑ 715). The only question asked about the appellant's intention in his cross‑examination was the very general suggestion that: 'You meant to hurt Mr Marshall, didn't you?'
Section 23 B of the Code is relevantly as follows:
23B. Accident
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
…
Section 23B replaces, in part, former s 23 of the Code. The former s 23 read:
Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
As can be seen, s 23B, in substance, reproduces the second limb of the former s 23. The case law in relation to the second limb of the former s 23 is relevant to the interpretation and application of s 23B: Raux v The State of Western Australia [2012] WASCA 1 [73] ‑ [79] (Buss JA).
An event occurs by accident if 'it was a consequence which was not in fact intended or foreseen by the accused and would not have been foreseen by an ordinary person': Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 231 (Gibbs J; Stephen J agreeing).
The State can disprove accident if it proves either that, subjectively, the accused intended or foresaw the event in question as a possible outcome or that, objectively, the event would reasonably have been foreseen by an ordinary person as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative): Raux [84] (Buss JA); R v Taiters; ex parte Attorney‑General [1996] QCA 232; [1997] 1 Qd R 333, 338 (Macrossan CJ, Pincus JA & Lee J).
The appellant submitted that it was not open to the jury to exclude accident because:
1.The evidence led at trial did not prove either that the appellant foresaw Mr Marshall's death as a possible outcome of his actions, or that an ordinary person in the position of the accused would reasonably have foreseen Mr Marshall's death as a possible outcome of his actions, having regard to the following factors:
(a)The appellant's denial that he intended to cause Mr Marshall harm.
(b)Even if the appellant's denials were not accepted by the jury, it was not a foregone conclusion that the appellant intended to push the victim through the glass.
(c)The reasonable person might have assumed the glass was safety glass.
These arguments cannot be accepted. It was plainly open on the evidence to find that the State had, beyond reasonable doubt, disproved accident, having regard to the following factors:
1.The appellant weighed 152 kg and was physically strong. The evidence was that he was aware of his strength.
2.The preponderance of the evidence was to the effect that the appellant pushed Mr Marshall with two hands.
3.Although there was some variation in the expression of the witnesses, the push was delivered with force. Mr Sylva said it was a 'fairly hard forceful push'. Mr Banning described it as 'a pretty big push'. Mr Barnes said it was 'a medium push, I'm guessing'. While the appellant was unable to say for sure how hard he pushed Mr Marshall, it is undeniable that it was hard enough to propel Mr Marshall backwards and through the window. The evidence of Dr James also suggests that the push was forceful.
4.At the time he was pushed, Mr Marshall was a very short distance from a floor to ceiling glass window. That distance was somewhere between 0.5 of a metre and 2 metres.
5.While the appellant and Mr Marshall did not know each other, there was evidence that the appellant was, at the time of the push, angry with Mr Marshall.
6.It is well‑known that glass is a material prone to break with the application of force. There was no basis for the appellant to believe that the glass window was sufficiently strong to withstand a forceful push.
7.It was open to the jury to infer that the appellant was aware that the window was some metres above Eric Street and that if Mr Marshall was propelled through the window he would, as a result of falling onto the footpath, suffer a bodily injury of the type required by s 279(1)(b) of the Code, which would in fact lead to death. While the State's case was never that the appellant intended to inflict fatal injuries upon Mr Marshall, it was open to the jury to conclude that Mr Marshall's death would reasonably have been foreseen by an ordinary person as a possible (not remote or speculative) outcome.
The appellant submitted that it could not be established beyond reasonable doubt that the appellant intended to cause bodily injury to Mr Marshall, having regard to the following factors:
(a)The appellant's denial that he intended to harm the victim.
(b)The offence lacked motive and the evidence did not demonstrate unequivocally that the appellant was acting in a rage.
(c)It was not a foregone conclusion that the appellant intended to push the victim through the glass.
Having regard to the seven factors I referred to earlier, these submissions cannot be sustained. It was plainly open to the jury to infer that the appellant intended to cause bodily injury to the victim.
Finally, it was submitted that if the appellant intended to cause a bodily injury to Mr Marshall, it was not of such a nature as to endanger or be likely to endanger him. Once again, having regard to the seven factors referred to earlier, it was clearly open to the jury to be satisfied beyond reasonable doubt that if the appellant intended to push Mr Marshall through the window, the consequences of a fall onto a footpath were clearly of a nature as to endanger or be likely to endanger Mr Marshall's life.
Having made my own assessment of the evidence and making due allowance for the natural limitations that exist in the case of an appellate court proceeding on the trial record, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt for the crime of murder. Ground 1 has not been made out and must be dismissed.

Ground 3

Ground 3 alleges that the learned trial judge erred by failing 'to canvass adequately the defence case in his Honour's summing up'. In particular, it is alleged that the learned trial judge failed 'adequately' to review the evidence led during the course of the trial and failed to 'adequately' link the law to the facts of the case. I agree with Buss JA for the reasons that he gives that leave to appeal with respect to ground 3 should be refused and the ground dismissed.

Having allowed ground 2, what is the appropriate order?

Section 30(5) of the Criminal Appeals Act relevantly provides:
30. Appeal against conviction, decision on
…
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or
…
This court, upon allowing the appeal against conviction, must set aside the conviction and may:
(a)order a new trial on the offence of murder or enter a judgment of acquittal of that offence ; or
(b)order a new trial for manslaughter or assault occasioning death; or
(c)if the appellant could have been found guilty of some other offence instead of murder and the court is satisfied that the jury must have been satisfied of the facts that prove that the offender was guilty of another offence, enter a judgment of conviction for that other offence.
In this case, the offences for which the appellant may have been convicted other than murder were manslaughter (s 280 of the Code) or assault occasioning death (s 281 of the Code).
The appellant's written submissions state that if the appeal is allowed on ground 2, the conviction should be set aside and a retrial ordered on a count of murder. At the conclusion of oral submissions, counsel for the appellant submitted, contrary to the written case, that this court could substitute a verdict of manslaughter (appeal ts 50).
Whether this court orders a new trial or makes some other order pursuant to s 30(5) of the Criminal Appeals Act is discretionary.
This is not a case where the appeal has succeeded on a ground that the evidence was insufficient to justify a conviction. If that were the case, it would be against principle to order a new trial: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [63] (Gummow, Hayne, Heydon & Crennan JJ). It must be accepted that the power to order a new trial should not be exercised in such a way as to give the prosecution an opportunity to make a new case which was not made at the first trial: R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518 (Dixon J). In Taufahema, Gummow, Hayne, Heydon and Crennan JJ discussed what is meant by a 'new case which was not made at the first trial' [64]. Their Honours, having analysed R v Wilkes, King v The Queen [1986] HCA 59; (1986) 161 CLR 423, Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 and Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, said:
These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial [67].
Gleeson CJ and Callinan J, in the same case, said:
What, in the context, is meant by 'a new case'? Plainly, it does not mean a different charge. Subject to certain rules of preclusion, or to considerations of oppression, if the prosecuting authorities fail to establish that an accused person committed one offence they may later charge him or her with another offence. In such circumstances, there is no new trial in other than a colloquial sense. There is a further and different trial. In the context of a new trial for the same offence, the reference to a 'new case' must be to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence [36].
The evidence that the State would adduce at a new trial would be, in substance, no different to that adduced in the first trial. The State's case would still rely upon s 279(1)(b). No doubt at a retrial the State would cast its case on a narrower and clearer basis, but that is not 'a new case'. As I have endeavoured to demonstrate in my reasons for dismissing ground 1, the admissible evidence adduced at the first trial was sufficiently cogent to justify a conviction for murder. All of these matters point towards an order for a new trial on the count of murder.
However, this court must take into account any circumstances that might render it unjust to the appellant to make him stand trial again, bearing in mind that the public interest in the proper administration of justice must be considered, as well as the interests of the individual accused: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 [5] (Gibbs CJ, Murphy, Wilson, Deane & Dawson JJ). Further, it must also be borne in mind that an order for acquittal conflicts with 'the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which … is the appropriate body to make such a decision': Andersonv The Queen (1991) 53 A Crim R 421, 453, cited with approval in Taufahema [51].
In preparation for the sentencing proceedings, the State filed written submissions. Paragraph 8 of those submissions reads as follows:
The State acknowledges that it could not be proved beyond reasonable doubt that the offender pushed Mr Marshall with the specific intention of him going through the window. However:
a.the surroundings in which he pushed Mr Marshall;
b.the direction in which he pushed him;
c.the force with which he pushed him (and must have pushed him, having regard to the expert evidence);
d.the fact that he was well aware of the force he was capable of applying;
all demonstrate, as the jury must have found, that the offender did, contrary to his evidence, intend to cause bodily injury to Mr Marshall and that the injury intended to be done was of such a nature as to be likely to endanger Mr Marshall's life or be likely to do so. (emphasis added)
The italicised words contain a concession that was not made at trial, but was made, for the first time, in the sentencing proceedings.
It was suggested in argument before this court that the concession was ambiguous. The respondent suggested that the concession should be read as a statement consistent with the State's position at trial, that it did not allege that the appellant intended to kill Mr Marshall (appeal ts 42). In any event, it was pointed out that the concession was made at sentencing and not at trial. Finally, it was said that the concession should not bind the appellant on appeal.
In my view, having regard to the text of the concession made in the written sentencing submissions and the way the sentencing proceedings were conducted, I am unable to accept that the concession was merely a repetition of the respondent's position at trial.
The concession made in the written sentencing submissions was accepted by the learned sentencing judge. As a result, the appellant was sentenced on the basis of facts favourable to him. If retried, it is arguable that if he is convicted on the narrower basis referred to earlier, he may receive a heavier sentence. In making this observation, I wish to make it clear that I am making no comment on the appropriateness of the sentence imposed by the learned sentencing judge.
Of course, whether the appellant will be convicted of murder or any offence at a retrial cannot be predicted. If the appellant was convicted of murder, his sentencing would be conducted according to the principles applicable to sentences imposed after a retrial: see Pollock v The State of Western Australia [2011] WASCA 133 [36] ‑ [39]. If the appellant is convicted on a narrower but more serious basis, he may be liable to a heavier sentence than the one that was originally imposed upon him. However, I cannot see how this would be unjust.
The risk that the appellant may be exposed to a higher penalty does not justify, to my mind, the step of preventing a retrial on the charge of murder in circumstances where the evidence is capable of sustaining that verdict.
The concession made by the respondent in the sentencing proceedings was, in my opinion, having regard to my analysis of the evidence, generous. I accept that it is a matter of relevance in deciding whether a retrial should be ordered on a charge of murder. However, in my judgment, having regard to all of the circumstances, a retrial on the charge of murder should be ordered.
The orders that I would make in the appeal against conviction are:
1.The appeal is allowed.
2.The conviction for murder is set aside.
3.A new trial is ordered.
As it is unnecessary to decide the appeal against sentence, it should be dismissed.