Silva v The Queen

[2016] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Silva v R [2016] NSWCCA 284

Hearing dates:

27 June 2016

Decision date:

07 December 2016

Before:

Leeming JA at [1];
McCallum J at [89];
R S Hulme AJ at [113]

Decision:

1. Allow the appeal.

 

2. Quash the appellant’s conviction for manslaughter and the sentence imposed by Hoeben CJ at CL on 6 March 2015.

 3. Direct that a judgment and verdict of acquittal be entered.

Catchwords:

Criminal law – manslaughter – self-defence – verdict unreasonable

Legislation Cited:

Civil Liability Act 2002 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Crimes Act 1900 (NSW), ss 23, 418, 419, 421
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:

Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Phillips v R [2016] NSWCCA 159
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204
R v Esho; R v Sako [2001] NSWCCA 415
R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
Whitmore v R; R v Whitmore [2010] NSWCCA 157

Category:

Principal judgment

Parties:

Jessica Silva (Appellant)
Regina (Respondent)

Representation:

Counsel:
G Scragg (Appellant)
N Adams (Crown)

  Solicitors:
Lawyerscorp (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2012/153148

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court NSW

Jurisdiction:

Criminal

Citation:

[2015] NSWSC 148

Date of Decision:

6 March 2015

Before:

Hoeben CJ at CL

File Number(s):

2012/153148

Judgment

1. LEEMING JA: The single issue presented by this appeal is whether it was open to the jury to be satisfied beyond reasonable doubt that Ms Jessica Silva was guilty of manslaughter. She maintains that the jury’s verdict was unreasonable and cannot be supported having regard to the evidence, and that this Court should quash her conviction and acquit her.

2. Ms Silva killed Mr James Polkinghorne on the evening of 13 May 2012. It was not in issue that he had been stabbed by her, five or six times, in the back and the back of the head, although only one of the wounds was fatal.

3. Ms Silva was charged with murder, and tried before Hoeben CJ at CL and a jury of twelve. After a trial lasting 11 days, the jury returned a verdict of not guilty of murder but guilty of manslaughter. She was sentenced to a term of imprisonment of 18 months, the whole of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW): R v Silva [2015] NSWSC 148. As is reflected by the sentence, the circumstances faced by Ms Silva were horrendous.

The abusive relationship between Ms Silva and the deceased

4. The deceased had been Ms Silva’s partner for around four years, and there was a two year old child of the relationship. Ms Silva was violently assaulted by the deceased throughout the relationship. In her interview with police in the early hours of 14 May 2012, Ms Silva said that the deceased had been hitting her, even throughout her pregnancy, although she did not go to a doctor or to hospital. She was asked about this:

“Q412. Why, why didn’t you go to the doctor?

A. ‘Cause I didn’t, I don’t know, I just didn’t want him to get in trouble, I didn’t want anything, and then to call the police, I don’t know, I just didn’t, I just wanted to help him, I really did, I really wanted to help him and I didn’t want to upset my parents.

Q413. What do you mean by that?

A. Like, you know, ‘cause my parents, my parents would be disappointed in me if, you know, they ever found out because they didn’t really know that he was hitting me up until I told them a few weeks ago, and if they knew, you know, they’d be so upset.”

5. She also said, “I couldn’t report it to the police ‘cause if I ever put an AVO he said he would kill me”. She said that the escalation in violence coincided with the deceased’s supply and consumption of unlawful drugs. She said that the deceased had followed her to Brisbane a fortnight earlier, and had “bashed me in front of his father and his father kicked him out of the house”. Ms Silva said that she and her child had left the unit in Dulwich Hill which she had shared with the deceased in around March 2012 and returned to her parents’ home in Marrickville.

6. There was evidence from witnesses and police of reports in 2009 of the deceased having assaulted and headbutted Ms Silva. An investigating officer observed that she was “visibly upset as she was crying and shaking”, but she denied that she had been assaulted, and the officer did not observe any injuries to her person. Neighbours had called the police twice, on 28 January and 21 April 2012, after hearing yelling and screaming, but no one answered the door after they arrived. The message received on the second occasion was:

“The caller states she can hear loud yelling and things getting mixed up and the caller is concerned because she knows the people who reside at that address. It’s a common occurrence”.

7. Ms Silva had secretly made an audio recording of another occasion of verbal abuse from the deceased, and had given a copy to a friend (although it appears that a copy was not given to the police until after 13 May 2012). The background television identified the time as 13 January 2012. It included the following monologue by the deceased:

“I’ll cave your fucking head in cunt. Look at me, I’m fucking serious. You wanna play fucking more games ... more shit that you have since I’ve fucking known ya. I’ll fucking kill you cunt. This is the last chance that I’ll fucking give ya. ... I don’t fucking play games. Do I look Portuguese. Gonna hang myself for fucking attention. Run around with a fucking knife, Kung Fu it on the floor. The only reason I hit everything else, right, is cause I wish it was you. If you get your fucking brother or something, I’ll cave the cunt’s head in. See if you can take the games to another level. I’ll crank it a lot harder than any fucking cunt you fucking know mate.” [Emphasis added.]

8. It is plain that Ms Silva had, repeatedly, heard language from the deceased which was at least as vile and threatening to her and to members of her family as were the messages and calls she received on the evening of 13 May 2012 immediately before the deceased was killed.

9. Ms Silva also said that she believed that the deceased had killed before, “that guy who was on the news”. She did not know his name, but said that the deceased had told her. It is true that, in the course of an ongoing police investigation connected with that killing, the mobile phones used by the deceased and Ms Silva were being intercepted, apparently unknown to them. That is why sound recordings of the calls, as well as the text messages, were available to be tendered at the trial.

10. The jury also heard evidence from a police officer who had searched the serviced apartment and the Dulwich Hill unit. An intrusive search was conducted in the serviced apartment, looking for firearms (I return to this below). No firearm was found, but the officer did find three vials of anabolic steroids. The Dulwich Hill unit contained furniture which had been smashed, doors which had been pulled off the hinges, and a number of holes in the gyprock walls which appeared to have been caused by physical force. Ms Silva volunteered that the “whole unit’s all smashed up” in her police interview. It was certainly open to the jury to find that the deceased had done that, and to Ms Silva’s knowledge.

The events of 13 May 2012

11. CCTV footage in the foyer of the serviced apartments on the southern outskirts of the Sydney CBD where the deceased was residing showed that Ms Silva and her son spent the evening of 12 May 2012 there. The fact that she went there at all, after having been away from him, after enduring physical and verbal abuse, is itself a powerful indication of the desperate situation in which she found herself. She said in her police interview that “I went to see him yesterday otherwise he would come and cause dramas”.

12. Ms Silva and her son left in the morning, which was Mother’s Day, to go to her family home. The deceased wanted her to return. RS Hulme AJ, whose judgment I have had the advantage of reading in draft, has reproduced the threatening and abusive text messages and phone calls made by the deceased to Ms Silva throughout that day. The CCTV footage shows the deceased leaving the apartment at 8:23pm, and his abusive call to Ms Silva commencing at 8:29pm also records him directing a taxi driver to Marrickville.

13. It was clear, from an anonymous triple-0 call made by Mr Miguel Silva at 9:04pm, that the deceased had arrived outside the Silvas’ house and was behaving erratically (he was “kicking stuff and going crazy”). A post-mortem toxicology report showed zero blood alcohol but significant concentrations of amphetamine and methylamphetamine in his blood. A further 6.1g of methylamphetamine, of 78% purity, was found on his person after his death. There was evidence, if evidence be needed, that the consumption of “ice” was capable of leading to rage, violence and paranoia. The deceased was a large man, well-muscled, and much larger than Ms Silva.

14. It is also clear from camera footage taken from a coincidentally passing bus, recorded as having been taken at 9:09pm, that by then the deceased was lying on the road, in the presence of Ms Silva’s brother and father and another witness. By that time, the fatal wound had been inflicted and Ms Silva had returned to the house.

15. Various witnesses gave evidence of seeing and hearing Ms Silva that evening. A passing driver, who made a triple-0 call at 9.11pm, gave evidence that he saw a person lying on the road, and two men trying to move a woman off the road. He said that she was resisting them, and was making noise: “There was some aggressive language being used by her, almost screaming”. He stopped his car two car lengths down the street, called triple-0 and returned to assist.

16. A neighbour gave evidence that she heard a high-pitched scream that evening, which continued for at least one minute. She looked outside and later went outside. In cross-examination, she identified a woman with the appearance of Ms Silva who appeared to be “absolutely hysterical”. She said:

“I couldn’t see her face that closely but she was in the most hysterical state I have ever seen, and I’ve seen a lot of people very distressed, and she was, yes.”

17. A witness who was a passenger in a car driving past said:

“The traffic was slow. We had a car in front of us but it slowed so we had to slow and we looked ahead, we could see a body on the road, in the middle of the road. There was blood on the road. ... There was a lady there and she is facing towards the road and she had an implement which I’m sure was a knife in her left hand, it was about 30 centimetres long I would estimate. There were some gentlemen holding her back. They were yelling. They were yelling and dragging her back and she was pushing forward and she was yelling. They were very agitated and there seemed to be a lot of noise all around.”

18. There was other evidence from neighbours and passers-by which need not be summarised. Between 9.11pm and 9.16pm, eight emergency calls were made. Four of those calls were made at 9.11pm, including one by Miguel.

19. What precisely happened in the minutes after 9:04pm that evening is not entirely clear. There were no eyewitnesses save for Ms Silva, her brother Miguel and father Avalino (for concision, I will refer to the two men by their Christian names). The Crown called Miguel and Avalino. There were some inconsistencies in their evidence, which did not fully accord with police interviews in the immediate aftermath. There were also inconsistencies with Ms Silva’s recorded interview with police, made between 5.27am and 6.36am on the morning of 14 May 2012, which was played to the jury. Parts of the recording show her to be distressed and emotional. (Lest there be any doubt about it, Ms Silva accepted that she had spoken to a solicitor, twice, before participating in that interview, and that the police officers repeatedly asked whether she wanted to have a break; on one occasion, Ms Silva said “I just want to get this over and done with”.) Ms Silva did not give evidence at the trial, as was her right.

20. However, it was not disputed that Ms Silva and Miguel came out of the house, together or almost together, after Miguel’s first triple-0 call had been made at 9.04pm, and tried to calm the deceased down. It was then that Ms Silva was punched and her pants ripped. There was a fight between the two men. Ms Silva went back into the house. Avalino came out of the house, and at one stage, held the deceased from behind while the deceased was straddling Miguel. Ms Silva returned from the house with a knife, which was used repeatedly to stab the deceased.

Issues on appeal and applicable legal principles

21. A notice of intention to appeal was filed shortly after sentence was imposed, and, in accordance with extensions granted by the Registrar, a notice of appeal was filed on 3 February 2016. The appeal was heard on 27 June 2016, after the majority of the term of the (suspended) sentence had elapsed.

22. Ms Silva’s appeal is based on a single ground, that the verdict was unreasonable and cannot be supported having regard to the evidence. That ground invokes the first limb of s 6 of the Criminal Appeal Act 1912 (NSW) and, not being confined to a question of law alone, lies only with a grant of leave: see for example Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202 at [12] and Phillips v R [2016] NSWCCA 159 at [23]. Leave was not separately addressed by the parties. However, given that there was full argument and no opposition to leave being granted, there should be a grant of leave.

23. Ms Silva’s basic submission on appeal was expressed thus:

“Your Honours, it is our primary submission that the Crown had not established beyond reasonable doubt that the appellant's response was not a reasonable response in the circumstances as she perceived them to be.”

24. Ms Silva accepted that the test was whether, upon the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that she was guilty of manslaughter: M v The Queen (1994) 181 CLR 487 at 493. The nuances of this test continued for a time to be controversial: see Jones v The Queen (1997) 191 CLR 439 at 441-443, 450-453 and 468. However, what is uncontroversial is the importance of the qualification added by the joint judgment in M v The Queen immediately after the formulation of the test:

“But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

25. The importance of, and the deference to be accorded to, the jury is entirely uncontroversial. This has consistently been reiterated: see for example R v Nguyen (2010) 242 CLR 491; [2010] HCA 38 at [33]. Most recently, the High Court has confirmed in The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 at [65] that it is a serious step for a court to set aside a jury’s verdict on this ground, and one “not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”. See also Whitmore v R; R v Whitmore [2010] NSWCCA 157 at [82]-[87].

26. The defence case at trial was principally based on self-defence. Section 419 of the Crimes Act 1900 (NSW) confirms that the onus of proving that an accused did not carry out the conduct in self-defence rests with the prosecution (contrast the position where the Civil Liability Act 2002 (NSW) applies, as to which see Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204 at [162]).

27. The jury’s guilty verdict necessarily amounted to an acceptance that the Crown had demonstrated beyond reasonable doubt that Ms Silva did not stab Mr Polkinghorne in self-defence within the meaning of s 418 of the Crimes Act 1900 (NSW). Section 418(2) provides:

“A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.”

28. Section 421 is as follows:

“(1) This section applies if:

(a) the person uses force that involves the infliction of death, and

(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

(c) to defend himself or herself or another person, or

(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.”

29. There are two aspects of these provisions of present relevance.

30. First, there is the threshold difficulty of determining the basis of the jury’s verdict. The trial judge gave directions in relation to provocation and death by dangerous and unlawful act as well as self-defence. The Crown observed in its written submissions that there was a gap in the case presented on appeal by Ms Silva, insofar as she addressed no submissions as to why either of those alternative bases for the jury’s verdict were not open. Ms Silva responded to this in oral submissions, as follows:

“The Crown's submitted that there are really no submissions made by the appellant in relation to provocation and/or manslaughter by dangerous and unlawful act. However, your Honours, we submit that is implicit in the whole of the written submissions where we focus upon the issue of self defence. That we are really are at the same time dealing with the issue of provocation and we submit also the issue of manslaughter by dangerous and unlawful act because ultimately it is our position that the act was not unlawful because the appellant was acting in self defence.”

31. But notwithstanding that global submission, Ms Silva’s oral submissions adopted the course taken in the written document, and focussed attention on self-defence. As counsel put it, “Really, it was always self-defence”. No submissions were made, for example, as to the element of loss of self-control in the partial defence of provocation under s 23 of the Crimes Act.

32. Ordinarily, where a judge has left to a jury more than one possible basis for a guilty verdict, and a challenge is made on appeal that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, it will be sufficient for the appellant to establish that one of the possible alternatives was not open to the jury. The possibility that the jury’s verdict has been reached by a route impermissible as a matter of law suffices to warrant its being set aside. See for example the reasoning in R v Esho; R v Sako [2001] NSWCCA 415 at [64]-[66].

33. However, it is of course open to the parties to narrow the focus of their challenge on appeal. Ordinarily, it is appropriate to do so. That is what has occurred in this case, by Ms Silva focussing exclusively on self-defence. These reasons will follow the same course.

31. Secondly, the question posed by s 421, in its application to the circumstances of this appeal, is peculiarly evaluative. Was it open to the jury to be satisfied beyond reasonable doubt that Ms Silva’s conduct was not a reasonable response that evening to the circumstances as she perceived them? The matter was framed in the following terms in the judge’s directions to the jury:

“Firstly, recognise that you are required to look at the circumstances as she – that is the accused – perceived them to be; that is, at the time she stabbed the deceased. Secondly, you are required to make a judgment whether in those circumstances her response was or was not a reasonable one.

That’s an absolutely classic jury point. There is nothing I could say to assist you on that. That is a matter for you as members of the community to determine what is or is not reasonable.

Bear in mind each of the four words used, ‘not a reasonable response’.

It is not a case of whether the accused could have made a better response. It’s not a case of whether you would have made the same response. It’s a case of whether the Crown has proved beyond reasonable doubt that the accused’s response was not reasonable, was not a reasonable response.”

35. No objection was made to those directions which emphasise the importance of the jury’s position in assessing the reasonableness of the conduct of an accused person charged with murder.

36. Ms Silva’s submission focussed on the horrendous situation confronted by her. She referred to the actual physical violence and sustained verbal abuse she had received over a number of years, and the fact that the deceased was capable of pointless violence when enraged (for example, the damage to the Dulwich Hill unit). She emphasised the actual threats of death, to her and to her family, in the hours and minutes prior to his death. It was put orally:

“[I]n my respectful submission the evidence in relation to self defence was simply overwhelming. There could be no doubt about that. It really only then becomes the question of the reasonableness of her response in those circumstances, in the agony of the moment, where she has got a partner and she has been subjected to domestic violence over a long period of time; he has shot once – shot and killed someone months before. She believes that he has a gun or access to a gun and that’s an entirely reasonable belief. She has been assaulted up in Queensland; he follows her up to Queensland, assaults her in a room, puts his hands around her throat. And I mean, what is she meant to do? I mean, your Honours can see her. She is a slight woman.”

37. That submission partly overstated the evidence. No gun was ever found. In her police interview, Ms Silva said that the deceased told her he had a gun (A35), but it was far from being at the forefront of her account. She later stated “Did he have a gun? I don’t know. Did he have a gun?” (A111). Mr Scragg, who appeared for Ms Silva at trial and on appeal, accepted that there was an issue of reliability, if not credibility, for the jury in relation to Ms Silva’s belief that there was a gun (transcript 27 June 2016, page 26).

The medical evidence

38. Attention must be given to the entirety of the evidence, not just the considerable volume of evidence pointing to the dire situation Ms Silva found herself in, on which her counsel – for understandable forensic reasons – focussed at trial and on appeal.

39. The starting point, as I see it, is the objective medical evidence. That evidence relates to each of Ms Silva, her brother and father, and the deceased.

40. Ms Silva told a paramedic at the scene that she had been punched in the face, twice, by the deceased, and another paramedic and a police officer observed swelling to her cheek. There was no evidence of any other physical injury to her person.

41. Avalino was uninjured, save for a cut to his thumb. I shall return to this below.

42. Miguel sustained a broken finger and some bruises to his chest and one of his legs. There was no medical evidence of any injury to his throat.

43. The deceased suffered five or six wounds, all to the back of his body. The fatal wound was 18cm deep, entering just behind the top of the left shoulder, passing through the lung and injuring the aorta and the left subclavian artery. It was described by the police forensic pathologist as a “devastating injury”, which would cause death due to blood loss imminently. There was also a vertical stab wound to the back of the head, starting just above the level of the ears, with a length of approximately 10cm. There was a horizontal stab wound to the back, just above the hip, which the forensic pathologist said “may have in fact been two overlapping stab wounds” (for that reason, it is unclear on the evidence whether there were five or six wounds) and which had a deep wound track approximately 11.5cm in depth. In the middle of the back, slightly to the left, was a shallow stab wound, which only penetrated around 1cm, and there was a shallow wound above the top of the left buttock. None of those other wounds was life threatening.

44. A knife found in the kitchen sink of the Silvas’ home, described as a “scratch shop solion designed brand black handled kitchen knife” contained blood with DNA consistent with that of the deceased. Both Ms Silva’s father and brother said they saw Ms Silva holding a knife in her hand. In her police interview, Ms Silva accepted that she had stabbed the deceased:

“Q241. Did, did you stab James?

A. Yes.

Q242. And whereabouts?

A. I don’t know. I don’t know.

Q243. Was he facing you at the time or did he have his back to you?

A. I think his back, I don’t know, I don’t know.

Q244. And you don’t know how many times?

A. Maybe twice I think.

Q245. And what were you thinking at the time?

A. That he was going to kill me.”

45. She later stated that he was facing her when she stabbed him, and that he had been getting up to punch her. She then answered as follows:

“Q339. And when you stabbed him, what happened then?

A. I don’t know, I think I walked, I don’t know, I just, I don’t know. Pulling me on the ground, I don’t know. I think my dad was trying to help, I don’t know, I can’t remember.

Q340. What do you mean your dad was trying to help?

A. I think it was my dad, I don’t know. They were just trying to help him, I don’t, I don’t know, I don’t know what happened. I don’t, I honestly don’t know what happened after that.

Q341. I think you said you stabbed him twice. Is that correct?

A. Yeah, ‘cause he was still trying to tag at me.

Q342. Yeah. So when you, so with the stab, how was it, was it like, what was the motion like, what did you do, was it, like, was it continuously or was it just -

A. No, no, it wasn’t continuously, no. I think it was just like that and then he kept trying to pull me down. He was going, ‘Oh fuck, I’m going to kill you.’ And then I think again, and then I did it again, I think, I think, ‘cause I was trying to hold myself up. I didn’t want him to pull me down, he was trying to drag me down to the ground.”

46. Ms Silva said that the deceased was trying to get up and that his head was around her waist or a little lower.

47. All of the evidence pointed to Ms Silva having inflicted all of the wounds to the deceased, and it was accepted on appeal that she had done so. It is also clear that Ms Silva’s answers to police as to the number of the wounds, and the way in which at least some of them had been inflicted, was inconsistent with the medical evidence.

48. It was open to the jury to conclude that the four or five wounds which were not life threatening were inflicted first, before the devastating wound that caused large quantities of the deceased’s blood to be expelled, at pressure, from his arteries. Any other order seems profoundly improbable.

49. Further, it is clear that any struggle on the part of the deceased must have ended, if he had not already been overpowered, in the seconds following Ms Silva inflicting the fatal wound to his aorta.

50. That said, doing the best I can, either or both of the vertical wound to the back of the deceased’s head and the fatal wound could conceivably have been inflicted by Ms Silva if the deceased was facing her, on his knees or trying to get up, with his head at about the height of her waist. They could also both have been inflicted from behind.

51. I return to the wound which Avalino sustained to his thumb. He accepted that it was caused by his daughter swinging a knife. His evidence was to the effect that he was trying to grab the knife from his daughter. He said this:

“Q. Sorry, can you say that again? I didn’t quite understand it?

A. Swang, or she swang the knife, and I went to grab it, and it went from my hand, and I saw it touched James like that.

Q. So you said she slammed the knife?

A. Swang. Swang, you know, like -

Q. Swung?

A. Swung. Sorry.

Q. And when she swung the knife how was she holding the knife at that point in time?

A. Oh, I don’t know. It’s just something that you don’t, you don’t take notice. I don’t know. You just, things just stop that knife from going down.

Q. All right. So before you said that you were grabbing for the knife when she was behind you. How many times were you trying to stop or grab this knife?

A. The first time I got cut, and then I’m trying to go for the second one. I can’t remember if I did grab her hand or not, but twice I think.

Q. Right. Once when she was behind you, and is it the case that the second time was when she was swinging the knife, or when she had swung the knife at James, is that right?

A. Yeah, when she was swinging it.

Q. And when she was swinging the knife were you trying to stop her?

A. Yes.

Q. Were you successfully stopping her?

A. No I wasn’t.”

52. He gave a similar account immediately after the event in his police interview, to which he agreed in cross-examination.

53. Thus, the evidence established, beyond any reasonable doubt, that Ms Silva repeatedly stabbed the deceased in the back, while he was struggling with her brother and her father, and while her father was attempting, unsuccessfully, to prevent her from doing so. It was only after those relatively superficial wounds had been inflicted that she stabbed the deceased again, deeply, into his chest cavity, wounding him fatally.

The circumstances as perceived by Ms Silva

54. The critical question posed by s 421 is what were the circumstances as Ms Silva perceived them to be when she killed the deceased? There was conflicting evidence about three matters directly bearing upon the issues presented by s 421: whether Miguel was being choked by the deceased, whether the deceased had threatened to kill Ms Silva and members of her family, and whether he had a firearm.

55. Miguel made no mention of being choked when examined in chief. He assented to a leading question in cross-examination that the deceased was “straddling you and leaning over you and had his hands on you up around your throat”. In re-examination, he was taken to the account he had given to police after he had been arrested, which made no mention of being choked, and described a different mode of attack:

“Because I had him, because I was holding on to his jumper he was trying to, like, hit me, but he couldn’t hit me with his fists so he was like, elbow, but he didn’t do any damage to me”.

56. Miguel also made no mention of a threat to kill him in his evidence in chief. He agreed, in cross-examination, that the deceased had been screaming something like “I’m going to kill you too” or “kill yous” when he was straddling him. In re-examination, he accepted that in his police interview, he had made no mention of a threat to kill him, and that the deceased had instead said “You fucking cunts, I’ll get youse”. In cross-examination, Miguel said that he could not remember the deceased ever threatening his father.

57. The jury enjoyed a very considerable advantage in seeing Miguel give this inconsistent evidence in cross-examination and re-examination.

58. Avalino said in his police statement that he had seen the deceased choking his son, and saying “I’ll kill you too, I’ll kill you too”, as he sought to pull the deceased away from Miguel. The Crown was permitted, over the objection of the defence, to put to Avalino that the deceased was not choking his son but that the two men were struggling with each other. He answered:

“No, that’s not right. When I saw – I saw James straddling my son.”

59. Again, the jury enjoyed an advantage in seeing and hearing this evidence being given. It is unclear from the transcript whether this was a hesitant and equivocal response, or was a firm refutation of what had been put to him by the Crown. The point was made by the Crown in its closing address:

“But what you should do, we submit to you, is take into account what he said himself rather than what he accepted from the barrister who acted for his daughter.”

60. Miguel gave evidence that the deceased was lying completely on top of him, with his head right next to his own head and that when his father came out, he tried to pull the deceased off him. The evidence is a little unclear, but he said that he saw Ms Silva holding a knife facing down to her side, but did not see her strike the deceased. Miguel said he was able to move the deceased, so that the deceased was stomach down on the ground.

61. In cross-examination, Miguel gave the following evidence about the struggle:

“Q. Isn’t it the case that you and your father had some difficulty getting James off the top of you?

A. Yes.

Q. Because of his strength and size?

A. Yes.

Q. He wasn’t a man who could be easily manoeuvred if he didn’t want to be manoeuvred; would you agree with that?

A. Yes.”

62. At that point, Miguel said that he was on his right side, holding him down by the shoulder, while his father was also holding him down by the shoulder. He said, “I know we were holding him down by the shoulders, I’m pretty sure”. At that time, he said, “I remember seeing a gash at the back of his head”. He said:

“Q. How much force were you applying to him through his shoulders?

A. Not much, because by then he was just, he stopped kicking.

Q. But before he stopped kicking, how much force were you applying?

A. Not much.

Q. In particular, while you were there, how much force was applied?

A. When we first turned him over there was a lot of force, but then there was no need because he just gave up.” [Emphasis added.]

63. He said that he and his father were holding the deceased by the shoulders for seconds, rather than minutes.

64. If Miguel’s evidence were accepted by the jury, then there are only two possibilities. One is that the moment when the deceased “just gave up” was the moment just after Ms Silva inflicted the fatal wound. The other is that the fatal wound was inflicted after the deceased had given up struggling.

65. The only evidence as to whether the deceased had a firearm came from Ms Silva in her police interview, which I have summarised above. However, there was ample evidence that Ms Silva was afraid for her life and for her family. She said as much to the police at her interview in the early hours of the following morning. This was confirmed by Miguel, who said that he could tell that she was afraid for her life and for the lives of members of her family, “Just by the look of her face”. That was also consistent with many of the text messages and telephone calls Ms Silva made and received that evening. In particular, there were two conversations primarily between her and Miguel at 7.21pm and 7.23pm that evening, which had been played to the jury. In the first, she had said “James is being a fuckin’ psycho again, and reckons he’s gonna come and kill me, right now.” When her brother said just call the cops if he come to the house, she said:

“(Crying) Miguel, I wanna fuckin’ tell them everything, but I fuckin’ can’t. He’s fuckin’, I, I (unintelligible). Why do you think I don’t tell them so he can bash me up all the fuckin’ time, I’m sick of it. Seriously, I’m fucking’ sick of it, and I don’t know what to fuckin’ do any more.”

66. The call then cut out. Shortly afterwards, the conversation continued. Ms Silva now spoke, repeatedly, of killing the deceased (Ms Silva is V1, Miguel is V2):

“V1: Yeah, can you call, can you, can you like is there anyone we can fuckin’ contact somebody to fuckin’ get him killed or something? I’ve fuckin’ had enough.

V2: Nobody, nobody can do anything with him. You have to call the cops. Just call the cops, the cops are gonna deal with him, all right? Get an AVO against him, do whatever you can. If he keeps coming and you don’t want him to come [unintelligible conversation].

V1: I can’t hear you, don’t worry about it, I’ll fuckin’, I’ll fuckin’ stab him myself.

V2: What can you do? What can I do? I gotta go down there and do what ay?

V1: I don’t know. [Voice in background] Can’t you – Dad’s saying can’t you speak to Channel’s grandfather. Hello.

V2: What’s he gonna do?

V1: Hello.

V2: What’s he gonna do?

V1: (Speaking to person in background – Dad, he said ‘What’s he gonna do?’) (Speaking in background – Send someone there to fix him up.) Send someone there to fix him up. Hello.

V2: [Unintelligible conversation] Get him bashed? What are you talking about? Get him bashed?

V1: Yeah.

V2: Is that gonna stop him, is it? Call the cops. Just call the cops.

V1: Yeah, what? Call the cops and say what?

...

V2: Go and, show them the messages he sent you, the threatening messages.

V1: (Sighs).

V2: You got proof there, the messages.

V1: And then what?

V2: Huh?

V1: And then what they gonna do? They’re not gonna fuckin’ arrest him ‘cause of the messages.

V2: Of course they would. They’re gonna tell him to stay away. Tell him to stay away.

V1: He won’t stay away, it’s gonna make him worse.

V2: All right, let it make him worse. But what the fuck are we gonna do about it? Do you wanna go there and fuckin’ kill him? What do you want me to do? Call the fuckin’ cops.

V1: Bye.”

67. Miguel was asked by the Crown why he understood his sister’s words “Send someone to fix him up” to mean “get him bashed”; he answered that “I didn’t think she really meant that”. The point was not taken further in Miguel’s evidence in chief or cross-examination. Avalino was asked about the conversation but could not recall it.

68. Two things may be noted about this aspect of Avalino’s evidence. The first is that he was actively participating in this conversation, and responding to Ms Silva’s statement (which, as best as I can tell from listening to it repeatedly, was delivered in a serious and resigned tone, suggestive of desperation) that she would stab the deceased herself. Both daughter and father were discussing serious physical injury to the deceased. I have no doubt that the words “fix him up” were understood by all three participants in this conversation to mean “get him bashed”, if not “get him killed”. Certainly, it was open to the jury to reach the same view.

69. The second is that, remarkably, Avalino said that he had no recollection of the conversation – a conversation in which his daughter spoke of stabbing the deceased a little less than two hours before Avalino saw her do just that. His son had been questioned by the Crown and defence counsel about that conversation on the previous day of the trial. By way of explanation, Avalino said that he had gone to sleep after the Mother’s Day barbeque, after having “a few drinks”; he said that “because of my prescriptions, that really knocks me out”. He said that he had diabetes and volunteered that he was forgetful.

Consideration

70. Only if it can be shown that it was not open to the jury to be satisfied beyond reasonable doubt that Ms Silva’s conduct was not a reasonable response in the circumstances as she perceived them can this appeal succeed.

71. The differences between the transcript of the various calls made on 13 May 2012, and the sound recordings of them, vividly illustrate an obvious fact: transcripts never record the full impact of testimonial evidence. I have referred above to the difficulties in appreciating the full force of the testimony of Miguel and Avalino.

72. Further, this was a trial where much was occurring in the court room which is not disclosed, or not fully disclosed, on the transcript. By way of example, Ms Silva became distressed during the forensic pathology evidence and was excused. Avalino plainly became discomposed as he gave his evidence in chief (the presiding judge invited him to “Take a few deep breaths. Just let us know when you’re ready to go on” and granted a short adjournment). There was a further adjournment during his evidence in chief. I infer that a deal of his evidence was given in a heightened emotional state. At one stage when her father became distressed and there was an adjournment, Ms Silva rushed to his side, and was with him during a short adjournment while he was giving evidence. Quite a few of Miguel’s answers were that he did not remember; he gave evidence that “I suffer from bad anxiety attacks”, and agreed in cross-examination that his anxiety affected his memory.

70. The jury was considerably better placed than am I to assess the evidence which bore upon the circumstances as Ms Silva perceived them at the time, and the reasonableness of her conduct. In particular, they were better able to assess the specific and quite precise evidence given by Miguel as to the course of his struggle with the deceased. I do not consider that the fact that this Court has been able to watch and listen to the recording of Ms Silva’s police interview, and listen to the telephone calls made shortly beforehand, significantly diminishes the advantages enjoyed by the jury, who saw Avalino and Miguel give evidence, and Ms Silva’s reaction to their evidence. Indeed, I am conscious of the risk of selective emphasis, insofar as this Court has seen a minority of the evidence (the recorded telephone calls and Ms Silva’s police interview) in the same way as that evidence was experienced by the jury, but otherwise is determining the appeal based on the papers.

71. Unlike this Court, the jury saw Miguel and Avalino. There is a poorly reproduced photograph of Miguel in the appeal papers (within exhibit N). The evidence established that both men worked at “As New Smash Repairs” in Marrickville, and that first Miguel alone, later accompanied by Avalino, were willing to, and did, grapple with the deceased. Although there was ample evidence that the deceased was a large and powerful man, it is less than clear whether the same applied to the two men who struggled with him on 13 May 2012 immediately before he was killed. The jury was in a significantly better position than this Court to evaluate the position Ms Silva would have seen when she re-emerged with a knife and saw her brother and father grappling with the deceased.

72. The jury reached a unanimous verdict. They took some four days to do so, in the course of which they were given a Black direction, but given the nature of the issues and the evidence, the fact that some time was taken is unsurprising.

73. Was it open to the jury to conclude, to the criminal standard of proof, that the fatal stab wound inflicted by Ms Silva was not a reasonable response to the circumstances as she saw them?

74. Let it be assumed, favourably to Ms Silva, that, shortly after she emerged from the house, Ms Silva perceived the deceased to be choking her brother, and shouting that he would kill him and her family. The deceased was large and well-muscled, with a proven history of physical violence, especially when affected by methylamphetamine. He had threatened to kill Ms Silva earlier that day, as he often had before, and he had punched her, twice, and ripped her clothes, minutes before. He had threatened to “cave [her brother’s] head in” if he intervened. He had committed pointless physical damage to the Dulwich Hill flat. I also bear in mind the vile telephone call which the deceased had made to her at 9:04pm, of his violence to her in the presence of her brother when they approached him, and of his demonstrated history of violence to her. It is impossible not to be appalled by the situation Ms Silva found herself in. I also bear in mind that Ms Silva did not know that her brother had already called the police.

75. There was no dispute that Ms Silva left Miguel and the deceased struggling, went back to the house, and returned with a large knife. I readily acknowledge that it would have been open to the jury to conclude that at that stage Ms Silva’s arming herself with a knife was a reasonable response in the circumstances as she perceived them to be.

76. However, when Ms Silva returned:

1. her father and her brother were both grappling with the deceased;

2. even if, when Ms Silva first returned to the scene, she believed that her brother was in imminent danger of grievous injury, it must be borne in mind that she stabbed the deceased five or six times;

3. during at least some of that time, her father was attempting to prevent her from doing so, and it is not without significance that her father had, less than two hours before, heard her speak of stabbing the deceased, and had suggested that someone be found to bash him up; and

4. there was overwhelming evidence that at least in the immediate aftermath, Ms Silva was screaming and in a highly emotional state.

80. It was open to the jury to conclude that the best evidence of what occurred after 9.04pm on 13 May 2012 came from the medical evidence and the evidence of Miguel, notwithstanding its (understandable) imperfections. That is my own view, although it is based only on the limited appellate record. The medical evidence was objective and uncontroversial. Avalino’s evidence was shortened by reason of his lack of recollection of a deal of what occurred that evening. Ms Silva’s police interview was highly charged, and she plainly did not recall, or was unable to say, all that had occurred (including, for example, the number of times she stabbed the deceased).

81. It was open to the jury to conclude that the struggle between the three men culminated with Miguel and Avalino holding the deceased by his shoulders, stomach to the ground. Before they had done so, Ms Silva had been stabbing the deceased, relatively ineffectually, in the back, and Avalino had been attempting, also ineffectually, to prevent her from doing so. That followed from an acceptance of Miguel’s evidence.

82. It was certainly possible that the deceased was still struggling while being held by Miguel and Avalino, when Ms Silva inflicted the fatal wound. And even if the deceased had in fact ceased struggling, I would readily accept that it was possible that Ms Silva perceived that the struggle was not over.

83. Even with the limitations of the (largely written) record, I am not persuaded that a deep penetrating stab into the deceased’s chest cavity, while he was struggling with two other men, might have been a reasonable response to the circumstances as Ms Silva saw them at around 9.09pm; such an attack could only have been reasonable if she perceived that she or her family was in immediate danger of grievous injury. I think it was open to the jury to reason in the same way. In my opinion, it would be wrong to translate the sympathy which anyone who was aware of Ms Silva’s situation in the months and days and hours leading up to 9.04pm on 13 May 2012 must feel to a conclusion that deadly force was a reasonable response to the circumstances as she perceived them. To be as clear as I can about this point, in the period immediately prior to 9.04pm, there was a body of evidence (the phone calls, her police interview and Miguel’s evidence of “the look of her face”) which supported a conclusion that Ms Silva was at that time in fear of her own life and the lives of members of her family when she and they next encountered the deceased. However, I do not consider that that evidence predetermines the issue posed by s 421(1)(b) a few minutes later. Test the matter this way. Suppose the police had arrived slightly earlier, such that when Ms Silva emerged with a knife, two officers were struggling with Miguel and Avalino to subdue the deceased. It is clear that a deep penetrating stab by Ms Silva in those circumstances would not be a reasonable response to the circumstances as she perceived them.

84. Bearing in mind how rapidly circumstances could and did change, I think that it was open to the jury to be satisfied beyond reasonable doubt that deadly force was not a reasonable response to the circumstances as Ms Silva perceived them at around 9.09pm.

85. The Crown’s address and the judge’s summing up reminded the jury of part of Ms Silva’s police interview, which went directly to the critical issue. The judge said:

“The Crown relied upon question and answer 294 in the electronically recorded interview, where the accused said, and this is the question, ‘Okay. When you stabbed him what were you trying to do?’ The response was:

‘I wasn’t trying to kill him. I was just, I don’t know. I was just trying, just didn’t, I didn’t want him to hurt me anymore. I just didn’t want him to hurt me anymore.’

The Crown submitted, ‘That may well be the closest answer, we would say, to what was happening here,’ and what the Crown was trying to do was to resist the proposition that she genuinely had a belief that he was going to kill her. The Crown was putting forward the proposition that she thought that she was going to be punched and bashed, but not killed. And the relevance of that to the legal scenario we have discussed is the question of the reasonableness of the response.

And in case I have not made myself understood. Just because you are going to be punched or something like that does not mean that you cannot defend yourself. You are certainly entitled to defend yourself if someone is going to attack you, but the level of the defence has to be balanced by the nature of the attack. That’s the point the Crown was making.”

86. Even though Ms Silva did not know that triple-0 had been called and that the police were on their way, and even if the deceased continued to struggle, she must have been able to see that the deceased was being held by two men, one of whom tried to stop her stabbing the deceased. Bearing in mind all the evidence, I do not consider that the jury must have had a doubt that her reaction went beyond what was reasonable in the circumstances as she perceived them.

87. If Ms Silva had believed that the deceased had a gun which he was prepared to use, then the position would be quite different. It is now known that he did not have a gun. Much of the circumstances pointed against her believing he had a gun – in particular, his threats, vile though they were, were repeatedly of brutal physical damage with his bare hands, and he had punched her when she and Miguel first met him outside her family home. It was open to the jury to reject the equivocal statements made by Ms Silva in her police interview concerning her belief that the deceased had a gun. This is the mode of reasoning to which the High Court referred in M v The Queen at 494 to the effect that a doubt experienced by an appellate court is capable of being resolved by the jury’s advantage in seeing and hearing the evidence.

88. If the jury rejected Ms Silva’s equivocal suggestion that she believed the deceased had a gun, and then accepted what followed from the medical evidence and the evidence of Miguel which I have summarised above, then I consider that it was open to them to be satisfied beyond reasonable doubt that Ms Silva’s final, penetrating, stab wound was not a reasonable response to the circumstances as she perceived them. I would not interfere with the jury’s verdict, on a matter that was rightly described by the trial judge as an “absolutely classic jury point”, when the jury sat through the trial over 11 days. I would grant leave to appeal, but dismiss the appeal.

89. McCALLUM J: I have had the advantage of reading, in draft, the judgments of Leeming JA and R S Hulme AJ and have undertaken my own assessment of the record of the trial. I agree with R S Hulme AJ that the appellant’s conviction for manslaughter must be quashed. While I am astute to the importance of according deference to the jury as the tribunal of fact, this is a case in which I simply cannot reconcile the verdict with the evidence.

90. My reasons for reaching that conclusion largely coincide with those stated by R S Hulme AJ. It is nonetheless appropriate to give some additional explanation of my conclusion in my own words, particularly since the Court is divided as to the determination of the appeal.

91. The appeal invokes s 6 of the Criminal Appeal Act. The burden of the appellant’s task is to persuade this Court, within the terms of that section, that the verdict is “unreasonable, or cannot be supported, having regard to the evidence.” The principles as to the proper approach to the determination of that issue are uncontroversial and are summarised in the other judgments. It may be observed that surprisingly little attention has been paid in the authorities to the word “unreasonable” in that statutory test. Certainly, the test has not been construed as one creating alternative grounds on which an appeal against conviction might be allowed (that the verdict is unreasonable or, alternatively, that it cannot be supported, in either case having regard to the evidence). But the word “unreasonable” must have some work to do. Leaving aside the circumstance where the verdict is unreasonable because it is inconsistent or in tension with the verdict on another count on the same indictment, the language of the statute suggests a composite test in which the appellate court’s assessment of the evidence is to be undertaken on the premise that a true verdict may only be reached by a jury acting reasonably and having regard to the evidence.

92. The facts are set out in detail in the judgments of Leeming JA and R S Hulme AJ. As their Honours have noted, while manslaughter was left to the jury on three different legal grounds, it is possible and appropriate in the circumstances of the present case to confine attention to the issue of self-defence.

93. The critical issue in the trial was one which is inherently both complex and evaluative. The Crown had to prove beyond reasonable doubt that Ms Silva’s conduct in fatally stabbing the deceased was not a reasonable response in the circumstances as she perceived them at the time of the stabbing. The learned trial judge’s directions were, with respect, as clear as the nature of the question permits and are not the subject of any challenge. But even with the benefit of proper direction, the test to be applied in determining that element of the Crown’s case is cumbersome and naturally lends itself to conceptual abbreviation in terms which obscure the significance of the Crown’s onus. I can accept that it was open to the jury to entertain a doubt as to whether Ms Silva’s conduct was reasonable in the circumstances as she perceived them at the time of the stabbing, but that is not enough to support the verdict. I find myself unable to accept that the jury could, acting reasonably, have been satisfied beyond reasonable doubt that Ms Silva’s conduct was not reasonable in the circumstances as she perceived them at the time of the stabbing.

94. Leeming JA has placed emphasis on the objective medical evidence and the evidence of eye witnesses concerning the confrontation itself. I accept that it is important to have regard to the whole of the evidence, including that important evidence. I have considered it carefully. Ultimately, however, the critical issue in this case is the reasonableness of inflicting mortal injury judging that issue by reference to an assessment of the circumstances in that instant as perceived by Ms Silva. While the evidence directly relating to the time of the stabbing is important, that assessment is also critically informed by a close analysis of the circumstances leading up to the fatal confrontation. That is not to give in to sympathy but is merely an aspect of the required assessment of the quality of the evidence in respect of that element of the offence.

95. My own assessment is that Ms Silva can only have perceived the deceased’s attack on her that evening as urgent, life-threatening and inescapable. A blow by blow analysis of the events in the street cannot be divorced from the exchanges that preceded those events. It is difficult to describe in words the irrational, menacing rage exhibited by the deceased in his calls to Ms Silva in the period leading up to the time when he confronted her physically. Absent some act in self-defence, serious harm to Ms Silva, her brother or her father at the hands of the deceased must have seemed virtually certain.

96. The fact that, unbeknownst to her or the deceased, Ms Silva’s phone was being intercepted by police means that there is, unusually, an incontrovertible record of unguarded exchanges between the two right up until that time. I have read and, where available, listened to the communications that were intercepted throughout that day. The content of some of the relevant exchanges is set out in the other judgments. Many aspects of those communications are difficult for a person outside the relationship fully to comprehend. A curious feature of their exchanges is that, to Ms Silva, the most vile abuse and the most terrifying threats from the deceased had evidently become normalised, almost banal. In many calls, she listens quietly as he rages on, abusing her and blaming her for all that was wrong with the world.

97. One thing that is striking about the exchanges is the extent to which the deceased’s rage escalated within the last hour or so before the physical confrontation in the street. Over hours he repeatedly verbally abused Ms Silva. The word “rage” barely captures the emotion he was expressing. In a number of calls, he exhibited a degree of anger that is beyond my experience or comprehension. He swore, he ranted, he threatened. While not clearly articulated, the only reason for such anger appears to have been the fact that Ms Silva had not returned to see him, as he expected. It cannot be doubted that he was significantly affected by the drug Ice at that point.

98. At about 6.30 pm, after much toing and froing about whether Ms Silva was to return to see him, the deceased called her and said “I’m coming to get you cunt. Fuck this mate. I’m sick of fuckin’…” The call was discontinued. What follows defies easy description. Ms Silva made call after call, seeking to talk to the deceased; he continued to abuse her in the most extreme language and the most menacing tone. In the course of one of the longer calls, he threatened “I’ll cave your fuckin’ face in”. After a further rant, he added “If you don’t come here, I’m telling you, I’m coming there a lot fuckin’ worse (sic)...I’m gonna make everything, there’s gonna be that, times two, it’s gonna fuckin’ hurt. Times three, four, the damage”. In one call, he spoke no words at all but only growled.

99. Following those exchanges, Ms Silva sent a text message apologising to the deceased, saying that she could have been more helpful to him. She followed up with a further phone call and, following further abuse from him, repeated her apology over the phone. She was crying at that point. The deceased concluded that call with the words, “Be there soon since you wanna fuck around. Everyone wants to fuck around. I’ll show you what you done to me.”

100. At 6.56 pm, within about two minutes after the termination of that call, Ms Silva called the deceased and asked him not to come to see her. He said “Too bad”. She said “Well if the Police come...”. He interrupted to remind her that she had not come to see him (“Noone wants to come here, dog”). She repeated “if the Police come, it’s not my fault”. He replied, “Well if they come, I’ll, I’ll guarantee I’ll bash as many people as I can before they arrest me. Guaranteed.” After some further abuse, he threatened her again, saying “Cause you know what you’re getting, ay, you piece of shit”. She told him Police were already there for some other matter (presumably something she made up, to discourage him from coming); he said he did not “give a fuck” and accused her of “talking shit”.

101. Between conversations with the deceased, Ms Silva made a number of calls to other family members seeking help. In one, she said to Ahora Williams “James is fricking being an idiot again. So he says he’s coming around to kill me now, so I’m just waiting for it.” She rang her brother, saying “he reckons he’s gonna come and kill me, right now”. The deceased had not used the word “kill” but had made several threats to “cave” her head in, or to like effect.

102. In a later conversation at 7.23 pm, Ms Silva’s brother urged her to call the police and to seek an apprehended violence order. She expressed scepticism as to how that would protect her (“He won’t stay away, it’s gonna make him worse”). That was plainly a realistic assessment of her predicament.

103. Shortly before 8 pm, in a call made by Ms Silva, the deceased repeated the threat, “I’m caving your fuckin’ face in ‘cause you’re a fuckin’ piece of shit.”

86. At about 8.30 pm, the deceased called and told her he was “nearly in the cab, I’m standing out the front. Good stuff mate. See what you fuckin do? ...” On the recording, he can then be heard getting into a taxi and instructing the driver to take him to Marrickville.

87. The deceased sent a series of abusive texts from the taxi including, at 8.34 pm, the following:

See you magots (sic) soon ay. Take responsibility for what’s about to happen dog because you’re at fault and the cause of whatever it is. You’re fucking pathetic and the biggest loser ever. What a piece of shit.

106. By 8.55 pm he had arrived. He called Ms Silva from the street. Their conversation included the following exchange:

Appellant:   Hello.

Deceased:   You’re a piece of shit aren’t ya?

Appellant:    What?

Deceased:   What do you mean, why? Nothing to say before I kick your fucking door down cunt or what.

107. Eight minutes after making that threat, he called again in a conversation which included the following exchange:

Appellant:   If you calm down I’ll talk to you.

Deceased:    Talk you fuckin dog. No, fuck you… I’ll come there, whether you fuckin like it or not and I’ll fuckin; kick your front window in and everything. You cunt, huh.

108. A minute later, he called again:

Deceased:    I’m not gunna fuckin’ stand out on the street cunt.

Appellant:   Huh.

Deceased:    I’m not gunna stand out on the street cunt.

Appellant:   Oh well, so what, do you want me to come out?

Deceased:   You better be doing fuckin something. You should be in the fuckin shitter, you fuckin putrid dog. (Long pause) You’re a fuckin

Appellant:   I’m not gonna come out till you calm down.

Deceased:    … putrid piece of shit. Nah, look you got fuckin’ literally, fuckin’ thirty seconds to walk out that door, otherwise I be hitting fuckin anger level hundred, straight off the bat.

109. Those exchanges give the context for the confrontation in the street, the evidence as to which is summarised in the other judgments. Ms Silva told police that she went out to see the deceased because she “didn’t want anyone else to get hurt” but herself. When she went out into the street, the deceased did in fact assault her, as he had repeatedly threatened during the evening and as he had repeatedly in fact done in the past. I respectfully agree with Leeming JA’s assessment that it was open to the jury to conclude that, during the subsequent struggle between the three men, it was a reasonable response for Ms Silva to arm herself with a knife. I do not think the evidence was capable of establishing, beyond reasonable doubt, that the stabbing nonetheless occurred at a time when Ms Silva’s perception ought to have been more optimistic.

110. The circumstances described in the evidence in this case are the kind in which, more commonly, it is the woman who is killed. In my assessment of the record of the trial, the evidence was not capable of proving beyond reasonable doubt one of the elements the Crown had to prove, namely, that Ms Silva’s conduct in fatally stabbing the deceased was not reasonable in the circumstances as she perceived them at the time of the stabbing.

111. I accept, as Leeming JA has noted, that the jury enjoyed an advantage in seeing the eye witnesses give evidence but that consideration has not resolved my doubt. The intercepted material is unequivocal and is available to this Court. In my assessment, the evidence cogently established the reasonable possibility that resort to mortal force was reasonable in the circumstances as she perceived them. On any view of the evidence of the witnesses, there must remain a doubt as to the proof of the elements the Crown had to prove.

112. For those reasons, I agree with the orders proposed by R S Hulme AJ.

113. RS HULME AJ: This case concerns yet another death substantially contributed to by methylamphetamine or ice. The deceased was an addict, paranoid and irrationally aggressive.

114. On 14 December 2014 the Appellant was found not guilty of having on 13 May 2012 murdered James Polkinghorne but was convicted of his manslaughter. On 6 March 2015 she was sentenced by Hoeben CJ at CL to imprisonment for 18 months, such sentence suspended upon her entering a bond to be of good behaviour. By Notice of Appeal filed 3 February 2016 she appeals to this Court seeking that the conviction be quashed upon the sole ground that:-

The verdict was unreasonable and cannot be supported having regard to the evidence.

115. The substance of the contention advanced on behalf of the Appellant was that the evidence was not capable of disproving that in killing the deceased she had acted in defence of herself or another. For the purposes of these reasons both situations are encompassed within the term “self-defence”.

116. Although the possibility of manslaughter by an unlawful and dangerous act was left to the jury, the nature of the stabbing of the deceased put beyond doubt that the Appellant had intended either to kill or to inflict grievous bodily harm on the deceased. Subject to the “defences” of self-defence and manslaughter she was thus guilty of murder.

117. Theoretically the jury’s verdict is explicable on the basis that they found the issue of provocation in favour of the Appellant, also found that her response was not a reasonable one and never considered the issue of whether the Crown had proved that she did not believe what she did was necessary to defend herself or some other person. However, counsels’ submissions and his Honour’s summing up – AB 19, 22, 31, 32 – make it clear that self-defence was the real issue in the trial. His Honour directed the jury that they should not consider manslaughter unless and until they had concluded that the Appellant was not guilty of murder and accordingly this Court should infer that the jury’s verdict of manslaughter carried with it the implication that the Crown had not established to their satisfaction that the Appellant was guilty of murder and, in the circumstances, had not established that she did not believe that her act was necessary to defend herself or some other person. The issue for this Court thus becomes whether the evidence was capable of establishing that the Appellant’s actions that caused death were not a reasonable response in the circumstances as she perceived them to be.

118. The evidence bearing on that topic fell into a number of parts. There was no dispute that there had been a fight involving the deceased, the Appellant’s brother Miguel Silva and her father Avalino Silva somewhere about the middle of the road opposite the premises of her parents at Livingstone Road Marrickville and that it was while that fight was occurring that the Appellant stabbed the deceased. The evidence as to the circumstances in which the stabbing occurred came from Miguel, Avalino and the Appellant’s ERISP.

119. A number of neighbours attested to the incident but other than saying they heard a great deal of screaming including by a female and seeing the Appellant with a knife afterwards, they gave no significant evidence of the details of the stabbing.

120. A pathologist’s evidence of the wounds suffered by the deceased, evidence to which there was no significant challenge, was to the following effect:-

(i)   In substance there were 5 stab wounds. One wound in the back was just above the hip region slightly to the right of the midline, approximately horizontal and may have been 2 overlapping stab wounds or the product of knife movement while in the body. It was about 11.5 cm in depth.

(ii)   A second wound was higher up the back close to, but to the left of, the midline and again approximately horizontal. This wound was fairly small and shallow.

(iii)   A third wound to the back was also to the left of the midline, horizontal and a little below the one I have first mentioned. This wound also was shallow.

(iv)   A fourth wound occurred to the back of the head just above the level of the ears. The wound track was about 10 cm long and passed underneath the skin into the soft tissues at the back of the neck.

(v)   The fifth and only fatal wound entered the deceased just behind the top of his left shoulder. It was about 18 cm in depth and was 1.19 metres above the level of the heel. It involved substantial injury to 2 major arteries close to the heart. Death would have followed within minutes.

121. Most of the wounds had one sharp and one blunt end consistent with a knife having those characteristics. The pathologist’s evidence was consistent with there having been more than one knife or one with a serrated edge but given the totality of other evidence, that possibility can be discarded.

122. The deceased sustained other injuries including extensive grazes over both of the deceased’s knees. These were consistent with extensive contact with a road surface, particularly if the knees were bent. There were also injuries to the face consistent with contact with a road surface. The deceased was found to have had a high concentration of amphetamines in his blood.

123. There was no dispute that the deceased was a strong man, muscular, 174 cm or about 5’8½’’ tall, weighing 85.5 kg and that he had threatened and had inflicted violence on the Appellant on a number of occasions in the past. The two had lived together for a time and had one child. The Appellant had separated from the deceased but subsequently stayed overnight with him on occasions. One of these occasions was the night of 12 May 2012 when they stayed at a hotel. According to her ERISP, for a time on the morning of 13 May the deceased would not allow her to leave but she reminded him that it was mother’s day and obtained permission to visit her mother, the deceased saying “Well, you fuckin’ better come back ‘cause if you don’t come back I’ll be at your house”.

124. On the way to her mother’s and later the Appellant received a number of calls and SMS messages from the deceased. In fact during the course of the day there were in the order of 80 calls and SMS messages between the Appellant and the deceased. Fortuitously, because the deceased was suspected of involvement in a previous murder in which the victim was shot, and the police were seeking information as to the numbers used by the deceased, the police were recording calls to and from the Appellant’s phone.

125. The Appellant also made some calls and sent some messages to the deceased. There were also some between the Appellant and Miguel Silva and Ahora Williams. There was evidence that Ahora Williams was the deceased’s mother. Extracts from some of the calls and SMS messages are revealing. What was said included the following.

126. (The passages following “App” were spoken or worded by the Appellant. Those following “Dec’d” were spoken or worded by the deceased. The reference to Miguel is self-explanatory. “AW” is Ahora Williams.)

Time	Caller	Called	Terms
11.20	(SMS) Dec’d	App	Dec’d - Fuck you and your pathetic thing of a mother. Hope she gets poison off the flowers you buy with my money and you will get gang raped while your son watches because of the way you are. Oh well fuck yous all, not my problem.
12.00	(SMS) Decd	App	Dec’d - Why be such a putrid piece of shit liar?
17.25	Dec’d	App	Dec’d - You, like you’re a full blown fuckin’ dog mate. I swear, I’m gonna cave your fuckin’ head in, I’m sick of your shit
17.30	(SMS) Dec’d	App	Dec’d - Fuck yous Im coming over now to cause shit because of you fucking rats
17.36	App	Dec’d	Dec’d - Fuck you mate. Im sick of your fuckin lies and Im sick of your mother’s fuckin shit. Couple of fuckin rats mate. That’s all youse are fuckin worth, shit. What do you fuckin want mate. App - Well Im trying to sort something out with you and… App - When you calm down call me. Dec’d - Nah cunt. Because if I fuckin don’t hear nothing in the next fuckin one minute, the taxi will be getting called if anything.
17.38	Dec’d	App	App No, you’re screaming at me and I don’t I wanna talk to you properly, but I can’t because you’re screaming. Dec’d Talk to me spastic, I’ve tried talking to you for four years spastic. App Yeah yeah. Dec’d Talk! Talk! Talk! App Stop screaming then. Dec’d Talk, you fickwit. Talk mate, or you’ll be getting more than screaming I’m telling ya.
18.20	Dec’d	App	Dec’d You’re a liar I swear! (long pause) you know what? Im gonna come there, even if I come and say what I’ve got to say and everything’s okay, I’m still gonna break your fuckin jaw, cause you’re a dog. You wanna fuck around, fuck!, (Panting) You fuckin’ dog.
18.29	Dec’d	App	Dec’d I’m coming to get you cunt. Fuck this mate. Im sick of fuckin (unintelligible).
18.34	App	Dec’d	Dec’d - …And I’ll come there, and I’ll cave your fuckin’ face in … I’m coming there to break something. I’m sick of being broken. … App If you calm down, I will come up there but you’re not. Dec’d No your fuckin’ getting in the car now. If you don’t come here, I’m telling you, I’m coming there a lot fuckin worse… I’m gonna make everything, there’s gonna be that, times two, it’s gonna fuckin hurt. Times three, four, the damage…
18.52	App	Dec’d	App (Crying) Look, I’m sorry for what I fuckin done to you. Fuckin whatever. Dec’d No your fuckin not… App (Crying) … Dec’d Be there soon since you wanna fuck around. Everyone wants to fuck around. I’ll show you what you done to me.
18.56	App	Dec’d	Dec’d Well if [the police] come, I’ll, I’ll guarantee I’ll bash as much people as I can before they arrest me. Guarantee. App Alright, Ok, sweet. Dec’d People wanna be fuckin dogs. People wanna ring up and pretend to fuckin cry, and then ring up and be a smart cunt? ‘Cause you know what you’re getting ay, you piece of shit.
19.04	AW	App	App So he says he’s coming around to kill me now, so I’m just waiting for it. AW Oh I just. App I’ve had enough. If he comes around, I’m calling the police… AW Alright give me a call and see what happens. I doubt if he’ll come out of the hotel room. App No, he will. He’s already on his way.
19.09	(SMS) Dec’d	App	Dec’d At this rate I will be seeing yous shortly
19.21	App	Miguel	App Oh no, just um, James is being a fuckin psycho … Miguel Hm. App … again, and reckons he’s gonna come and kill me, right now. Miguel Just call the cops if he comes to the house. App (Crying) Miguel, I wanna fuckin tell them everything, but I fuckin cant. He’s fuckin, I, I (unintelligible). Why do you think I don’t tell them so he can bash me up all the fuckin time, I’m sick of it. Seriously I’m fuckin sick of it, and I don’t know what to fuckin do any more. Miguel If he comes there, just call me, all right …
19.23	Miguel	App	App Yes. Just, I don’t know. He keeps saying he’s coming and fuckin I don’t know, I’m sick of it, I’ve had enough. Miguel … Just leave the fuckin doors closed, and call the cops, that’s it. Just call the cops. App But it’s gonna make things worse, I call the police they’re gonna arrest him, but they have nothing to arrest him from, he’s knocking on the door. They’re gonna not arrest him, and its still gonna cause more, more problems. … App Yeah, can you call, can you, can you like is there anyone we can fuckin contact somebody to get him killed or something, I’ve fuckin had enough. Miguel Nobody, nobody can do anything with him. You have to call the cops. Just call the cops, the cops are gonna deal with him, all right? … App I can’t hear you, don’t worry about it, I’ll fuckin, I’ll fuckin stab him myself.
19.33	App	Dec’d	Decd I’m grabbing a jumper, cause I’m on my way. … App I’m gonna, I’m gonna kill myself right now, okay? Dec’d Yeah, bullshit. You’re full of shit.
19.56	App	Dec’d	Dec’d Still breathing I see. You full of shit fuckwit. App Yeah? Okay. Dec’d Yeah yeah. App Hm Cause you wanna kill me ay? Or you want me to kill myself? Dec’d I’ll be, I’ll be, I’ll be there soon dog. Yeah, if you, don’t throw that at me dog. I’m not gonna take any more responsibility for you, your bullshit, or your fuckin actions fuckwit….
19.58	App	Dec’d	Dec’d … You wanna manipulate and shit by sitting there saying you’ll fuckin kill yourself, you’re a fuckin gronk. I’ll guarantee you’re still alive tomorrow, you fuckin fat dog. And if you are, I’m, I’m caving your fuckin’ face in cause you’re a fuckin piece of shit.
20.29	Dec’d	App	Dec’d Fuck, you’re a great piece of shit ay? I’m nearly in the cab, I’m standing out the front. Good stuff mate. See what you fuckin do?... What a great dog. Just so you can be the dog you are Wooooo. And you see nothing wrong with it. Not a thing wrong, everything’s okay is it? Is it? Huh? (Speaking to person in background – Oy boss, Marrickville. Yeah, thanks.)
20.34	(SMS) Dec’d	App	Dec’d See you magots soon ay. Take responsibility for what’s about to happen dog because you’re at fault and the cause of whatever it is. You’re FUCKING pathetic and the biggest loser ever. What a piece of shit.
20.55	Dec’d	App	App Hello. Dec’d You’re a piece of shit aren’t ya? App What? Dec’d What do you mean, why? Nothing to say before I kick your fucking door down cunt or what?
21.03	Dec’d	App	App If you calm down I’ll talk to you. Dec’d Talk you fuckin dog. No, fuck you… I’ll come there, whether you fuckin like it or not and I’ll fuckin; kick your front window in and everything. You cunt, huh.
21.04	Dec’d	App	Dec’d I’m not gonna fuckin stand out on the street cunt. App Huh. Dec’d I’m not gonna stand out on the street cunt. App O’h well, so what, do you want me to come out? Dec’d You better be doing fuckin something. You should be in the fuckin shitter, you fuckin putrid dog. (Long pause) You’re a fuckin … App I’m not gonna come out till you calm down. Dec’d … putrid piece of shit. Nah, look you got fuckin’ literally, fuckin’ thirty seconds to walk out that door, otherwise I’ll be hitting fuckin anger level hundred, straight off the bat.

127. It is an inevitable inference that at the time of that last call the deceased was in the vicinity of the Silvas’ house on Livingstone Road.

128. Reproduction of the words does not convey the emotion apparent from listening to the recording of the conversations. Listening makes clear that during most of the calls the deceased was angry, at times very angry and to the extent of being incoherent. During some of the calls the deceased was quite irrational.

Appellant’s ERISP

129. According to the Appellant’s ERISP, after the last phone call and because she did not want the deceased to hurt her son or anyone else, she went outside. Other evidence indicates that Miguel followed. Either before or after the Appellant walked outside the deceased ran across the road towards the house where she was, saying possibly something to the effect, “I’m going to fuckin’ kill her” or “She deserves to die”. Miguel tried to calm the deceased but the latter grabbed the Appellant, punched her face about twice and ripped her pants “all down the middle”, and saying that he had a gun. She ran back inside, grabbed a knife from a kitchen drawer and went back outside. Asked what she did with the knife, she said that she thought she stabbed the deceased.

130. The Appellant said that when she first went outside she thought that her brother and his girlfriend were already there having a smoke. The evidence of Miguel and his girlfriend, Laura McDonald is to the contrary. The Appellant also said that she thought that at that stage her father also was trying to calm the deceased.

131. At a stage during the ERISP after the Appellant had described the deceased punching her and ripping her pants she said that was when she “just lost it”. Asked what she meant by that she said that she did not become angry, but that she walked outside (sic), crying and scared.

132. She said that she grabbed the knife because she thought that the deceased had a gun and he said that he was going to kill her. She thought that when she emerged from the house again her brother was on the ground and she thought, though she did not know, that the deceased was punching him. It all happened fast and the deceased got up. The Appellant went on, “And he looked at me with his evil eyes and goes, ‘I’m going to fuckin’ kill you’, his fuckin’ evil eyes. And then I think he knows that I had a knife and then I don’t know, I don’t know if that’s what happened or not. Fuck, man, I can’t think”.

129. She also said that she could remember the deceased punching and head-butting her brother but did not remember her father or brother holding the deceased down. She did not know where her father was. She seemed to be saying that at this time also the deceased grabbed her pants and tried to pull her down.

130. Asked if she had spoken to the deceased when he was on top of Miguel the Appellant said, “No. I said, oh, ‘James, get off’. He goes, ‘No, fuck youse all, fuck youse all, youse all deserve to die, youse all deserve to die”.

131. Later she said that she thought that the deceased was getting up to hit her again. “He was coming up with a big fuckin’ punch and I’ve copped that punch before”. Asked if the deceased turned around to get up she replied, “No, yeah”. She said that she thought she had stabbed the deceased as he was getting up and grabbing onto her and at a time when his head was at about the height of her waist. Asked what she was thinking when she stabbed the deceased, she said that she thought he was going to kill her. Later she said that she wasn’t trying to kill him; she didn’t know what she was trying to do; she just did not want him to hurt her anymore.

132. At one stage during the ERISP the Appellant said the she knew for a fact that he was coming to kill her, this being just before everything happened. It may be that the Appellant was intending to refer to the phone calls but the Appellant was never asked to identify the time to which she was referring.

133. According to other statements of the Appellant recorded in the ERISP, the deceased had previously killed someone who had featured on the news. He had guns in the past. He had threatened her family and she believed if she went to the police he would kill them. He had threatened to kill the Appellant if she ever put an AVO on him, a threat that caused her to refrain from reporting the deceased’s violence to the police.

134. The Appellant’s ERISP was made between 5.27 and 6.36 am on 14 May. There is no doubt that during parts of it she was very emotional. There were many occasions when she said that she didn’t remember and words to the effect, “I think”.

135. Some confirmation of the Appellant’s account that the deceased had punched her was afforded by evidence that that night police observed a bruise and swelling near the left side of the Appellant’s mouth. That night police also took possession of torn pants they found in the bathroom of premises at Livingston Road.

Miguel Silva – AB 959

140. Miguel Silva gave evidence that he returned home in response to a phone call from the Appellant. He said that the sound of the deceased yelling was the first sign of the deceased’s arrival. Miguel then rang 000 and advised them that outside his house a guy was going crazy, yelling and screaming and kicking items. Miguel declined to identify himself and denied knowing the person. He made the call from the bathroom and no-one knew he was making the call. He could not remember telling anyone afterwards that he had made it. – AB 982

141. When the Appellant went outside the house Miguel followed her. Screaming “You fucking cunts, I’ll get you”, the deceased ran across the road towards the house and tried to punch Miguel, grabbed the Appellant on her hips or pants and was throwing her around and saying “I’ll get youse cunts”. Miguel tried to separate the two but the deceased then punched him, breaking Miguel’s finger. He grabbed the deceased’s jumper or shirt and both tripped or fell over, the deceased on top. Miguel tried to hold the deceased down to stop the deceased hitting him and then Miguel noticed his father trying to pull the deceased off.

142. After a period the deceased stopped kicking and punching and Miguel and his father turned the deceased over and held him down. It was then Miguel first saw the Appellant and observed that she was holding a knife.

143. At one stage Miguel said that he did not remember hearing voices when he was under the deceased. Prompted, he then said that at that time the deceased was calling out words like, “I’m going to get youse all” and “I’m going to kill youse”. Miguel also said that when the deceased was on top he had his hands around Miguel’s throat.

144. Miguel had made a statement to police “on the same day that this all happened”. Presumably he meant 14 May. In evidence he agreed that he had not told the police about being choked. He agreed also that although he had told the police about the deceased saying, “You fucking cunts, I’ll get youse” he did not tell the police that the deceased had said, “I’m going to kill you.” When examined by a police forensic officer on the night of the killing, Miguel informed the officer of a number of injuries, all relatively minor, but made no mention of his neck.

Avalino Silva – AB 1034

145. Mr Avalino Silva said that after a family barbecue on Mother’s Day he had gone to sleep and been woken hearing the Appellant screaming words to the effect, “He’s going to kill Miguel”. He went outside and saw Miguel in the middle of the road with the deceased on top, his knees on the ground and straddling Miguel. Mr Silva senior ran across the road and tried to pull the deceased off. The deceased had his hands around Miguel’s throat and was choking Miguel who was screaming, “let go of my neck”.

146. At least initially Mr Silva senior was unsuccessful in trying to pull the deceased off Miguel. The deceased appeared very angry and in a rage. While the deceased was on top of Miguel he was screaming, “I’m going to kill you too” and the Appellant was screaming words to the effect, “Leave my family alone”.

147. During the evening Mr Silva senior sustained a cut between the thumb and forefinger of his left hand. The cut occurred when he tried to stop the Appellant, then behind him and screaming, swinging a knife, as the witness recalled, twice. He had grabbed for her left wrist unsuccessfully. At this time the deceased was still on top of Miguel and had his hand on Miguel’s throat or face. Avalino told the Appellant to stop. She did and he took her inside the house.

148. During the incident and while the deceased still had his hands on Miguel’s throat Mr Silva saw the deceased turn around and smile and say, “I’m going to kill you too”. – T299

149. The Crown was given leave to cross-examine Mr Silva senior on the issue of whether the deceased had his hands around Miguel’s throat. Mr Silva adhered to what he had earlier said and gave evidence that in his police statement made between 2.09 and 3.20 am on 14 May he had said that the deceased was choking his son and saying “I’m going to kill you too” – T299.

150. There was some other evidence relevant to the activities of Mr Avalino Silva. He is recorded in a telephone call of 19.54 speaking to the Appellant. In a call at 20.04 Miguel Silva remarked that he thought his father had gone to the city and in a call at 20.12, the Appellant remarked that her father had been at the front door when she had just opened it.

151. It is apparent from what I have said that while not all of the evidence was consistent, to a substantial extent the three versions were similar – Miguel Silva on the ground, the deceased above him, Mr Avalino Silva endeavouring to pull the deceased off and the latter being stabbed at about that time. It should be noted that the police arrived very soon after the stabbing. The Appellant was inside and her brother and father outside. Police went inside at an early stage and arrested the Appellant. According to Miguel’s girlfriend when she went outside very shortly after the stabbing Miguel and his father were sitting or leaning next to the deceased and shortly afterwards she and Miguel drove off. This would seem to have occurred prior to the arrival of the police. They went to the top of the street and then Miguel decided he would go back. He did so but was arrested prior to arriving where the stabbing occurred. The effect of this evidence was that there was little, and in the case of the Appellant no, opportunity for any collaboration as to what accounts of events should be given. At least some of the inconsistency is readily explicable by the charged emotions that there must have been in existence at the time of the events.

152. That said, there were some issues of credibility. The deceased did not have a gun although that is not necessarily inconsistent with him saying he did. Mr Miguel Silva had made no mention when providing his statement to police of having been choked and when seen by police that night he had no bruises on his neck. On the other hand it must be acknowledged that in his police statement Mr Avalino Silva did say that the deceased had been choking Miguel.

153. Mr Avalino’s statement that he had gone to sleep after a family barbecue and been woken by yelling is impossible to reconcile with the Appellant’s statement some 45 minutes prior to the deceased’s arrival that she had just let her father in the front door.

154. There are some other matters to which reference must be made. A number of witnesses gave evidence of statements that the Appellant had made in the past to the effect that she had been assaulted by and was fearful of the deceased. One such witness was the deceased’s half-sister, Ms Spice. Ms Betina Williams, another step-daughter of the deceased’s father, recounted the Appellant saying that she was scared for her life and afraid to contact police and that the deceased would hurt her family if she did.

155. Constable King recounted a conversation with the Appellant after the incident. The Appellant informed Constable King of the deceased having followed her to Queensland and bashing her – an event attested to by the deceased’s father. Constable King asked if the Appellant had ever reported this to police or obtained an AVO to which the Appellant replied, “He told me, ‘If you ever get an AVO or go to the police I’ll fucking kill you’. I am so scared of him”. There was other unchallenged evidence of the Appellant having been assaulted by the deceased, in the street and in a unit they lived in.

156. There was expert toxicology evidence, not challenged, that characterised the level of amphetamine found in the deceased’s blood as quite high – around 4 times the top of the therapeutic range, that this was likely to lead to more aggression – AB 1224 – and that the use of methylamphetamine and associated violence, irrational and aggressive behaviour is well documented. A toxicologist called by the defence said, without challenge, that studies had shown that, particularly in the case of an individual who has an underlying tendency toward violence, there is a propensity to commit violent acts when under the acute effects of methylamphetamine. Usage over an extended period was liable to lead to paranoia and hallucinations.

157. There was evidence from a Ms Liyanage who by arrangement with the deceased visited him at an apartment where he was living on the evening of 11 May 2012. It was apparent that the deceased had barricaded himself in his apartment, said “Shh” when the witness arrived and thereafter communicated by writing messages on his phone. Among the messages were “I’m going to tell you a thing that will probably freak you out; but don’t get scared; they’re watching and listening”. At this time the deceased pointed to the microwave, at a mirror, under the front door and inside a dryer. Other messages were “Someone is watching me through the mirror”, and “look at the microwave, can you see?” The witness looked and there was nothing to see in the microwave. The deceased kept the lights off during this time and was angry when Ms Liyanage wanted to leave, something she achieved at about 7am the next morning.

158. There was evidence of very substantial damage having been done to an apartment in which the deceased and Appellant had lived. After the deceased’s death the police searched it. All the furniture in the lounge room had been smashed. Upstairs the doors to a built-in wardrobe had been pulled off hinges and damaged and there were a number of holes in gyprock walls apparently cause by physical force.

159. Relied on by the Crown was evidence that prior to the incident the Appellant had made threats of doing injury to the deceased. A Jasmine Williams, the stepdaughter of the deceased’s father spoke of the occasion when the Appellant went to stay with the father in Queensland. The deceased followed her there and assaulted her. Later there was conversation between Ms Williams and the Appellant. The latter was crying and hyperventilating. Asked what happened, the Appellant said that the deceased had gone crazy, had started hitting her and then went to choke her, demonstrating with her hands around her neck. According to Ms Williams the Appellant was upset and angry and also said, “If he does it to me again I am going to kill him”.

160. There were of course also the phone conversations between the Appellant and Miguel Silva parts of which I have quoted.

161. The Crown’s argument to the jury was that shortly before the stabbing there were 2 men dealing with the deceased, Miguel was not being choked, the Appellant was not under any immediate threat and it was accordingly unnecessary for her to attack the deceased. Her statement in the ERISP that she did not want the deceased to hurt her anymore was not a self-defence claim and, although the Crown accepted the Appellant did not have a premeditated plan, what happened was what the Appellant had foreshadowed.

Consideration

162. In The Queen v Baden-Clay [2016] HCA 35 at [65] - [66] the High Court made plain that:

65. The setting aside of a jury's verdict on the ground that it is “unreasonable” … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] 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.”

163. A jury is not obliged to accept all of the evidence placed before them. This principle has particular application to oral accounts that may be mistaken or fabricated. However, much of the evidence to which I have referred does not fall into this category and no logical reason exists for rejecting those portions. There could be no question as to the important terms and tone of what the deceased had said in the phone calls and messages that day. Certainly he had not in terms threatened to “kill” the Appellant. However he was powerful, had been violent in the past, had previously attacked the Appellant and on the day in question he was very angry, irrational, and had threatened to seriously hurt her and to come to where the Appellant was, thus providing some opportunity to carry out his threats.

164. When he arrived he was, according to Miguel’s 000 call, going crazy, yelling and screaming and kicking items. There could be no doubt that Miguel made the call. It was not suggested that Miguel had made up the description of the deceased’s conduct recounted in the call and there is no obvious reason why that description might have been rejected.

165. According to the Appellant and Miguel, once the Appellant went outside the deceased immediately ran across the road, grabbed the Appellant around the hips or pants and threw her around. The Appellant said she was punched and had her pants ripped by the deceased. Significantly for present purposes, she had bruising to her face and it was not suggested that anyone but the deceased had punched her or torn her pants.

166. Miguel and the Appellant said respectively that as deceased ran across the road, he was saying, “I’m going to fucking kill her” and “I’ll get youse cunts”.

167. The Appellant said that she went into the house, obtained a knife and by the time she emerged her brother and the deceased were on the ground. Miguel and Avalino also place them there. The Appellant in her ERISP, Miguel and Avalino all asserted that the deceased was on top of Miguel.

168. In that the evidence of the deceased making threats as he ran across the road was dependent on acceptance of the oral evidence of Miguel and the Appellant, and there were inconsistencies or gaps in the evidence concerning the deceased attempting to choke Miguel, the jury may not have accepted that these events occurred. Putting those aspects aside, once one recognises that it was the deceased’s decision to attend at Livingstone Road when he did and that there was no significant opportunity for the Appellant to join with Miguel in fabricating a story, there is no rational reason for the jury not accepting the substance of the above account as to what people did. And even putting aside the statements of the deceased having his hands around Miguel’s throat, if one accepts the description of the other physical movements of those involved, Miguel was then in a position of some danger. If one accepts the evidence as to the deceased’s statements and mental state, the danger was serious.

169. The terms and tone of the Deceased’s remarks in the recorded phone calls indicate that the Appellant also was in some substantial danger from the deceased.

170. There being no rational reason for not accepting the substance of all of this evidence, it is impossible to avoid the conclusion that the Appellant’s perception of the circumstances included that the deceased presented a significant danger. So much is also implicit in the jury’s acquittal of the Appellant on the charge of murder and the conclusion inherent in that, namely that the jury accepted that the Appellant believed her act was necessary to defend herself or some other person.

171. Was the Appellant’s response reasonable? In answering the question it is to be borne in mind that the question is not whether her response was the best one, or one that others may have taken. It is however relevant to ask what other responses were available. Given the circumstances in which Miguel had called the police it is to be inferred that the Appellant did not know he had done so. Calling them was clearly one option at the time that the Appellant picked up the knife but it was inevitable that they would take some time to arrive. Furthermore, given what the Appellant had said in the phone calls concerning calling police and AVOs, it is impossible to avoid the conclusion that she believed there were substantial disadvantages, and perhaps danger, in doing so.

172. Once the Appellant observed Miguel on the ground and the Deceased straddling him, it must have been certain that any call made at that time would have resulted in the police arriving too late to prevent the brawl advancing further. It was also not obvious that the combined efforts of those present could overpower the deceased.

173. In these circumstances it seems to me that there was only one answer to the issue of whether the Appellant’s response was “a reasonable response”. It was not open to the jury to be satisfied beyond reasonable doubt that the Appellant had not acted in defence of herself or her brother and father.

174. In so concluding I do not ignore the Appellant’s prior threats to do harm to the deceased. They do provide evidence from which it might be inferred that the Appellant was more ready to kill than otherwise and that her threshold for doing so was lower. They are evidence which raises the question whether her actions were inspired by a belief as to the necessity of acting as she did but say little or nothing on the issues of the Appellant’s perception of the circumstances or the reasonableness of her actions. As I have indicated, I regard the first of these question as resolved by the jury in the Appellant’s favour.

163. Nor do I ignore the nature of the stabbing. The number and spread of wounds argues for the Appellant either not thinking clearly or being in some sort of frenzy or, as that her thoughts did not go beyond, as she said, she just did not want the deceased to hurt her anymore. The fact that the deceased was stabbed in the back argues against the Appellant’s account that the deceased had turned around or was getting up. However the deceased’s verbal and physical conduct and strength so reeked of violence that the requirements of reasonableness did not demand that the Appellant avoid doing what she did.

164. I have also reflected on the possibility that the jury may not have accepted any evidence of oral threats having been made by the deceased in the vicinity of Livingstone Road. If made, such threats must have strengthened the case for the Appellant to remove or reduce the threat posed by the deceased but there was so much other evidence of him being a danger that I would not regard the absence of oral threats then as reducing the danger to a level where it could be said the Appellant’s response was not reasonable.

165. The presently relevant component of the self-defence test is whether the Crown has proved that the Appellant’s act was not a reasonable response in the circumstances as she perceived them to be. Reasonableness is peculiarly a question for a jury and I am conscious of the demanding nature of the test which must be satisfied before this Court is justified in overriding the jury’s conclusion. Nevertheless, particularly when regard is had to the fact that the onus of proving the absence of reasonableness is on the Crown, I am satisfied the appeal should be allowed.

166. I propose that the Court make the following orders:-

1. Allow the appeal.

2. Quash the appellant’s conviction for manslaughter and the sentence imposed by Hoeben CJ at CL on 6 March 2015.

3. Direct that a judgment and verdict of acquittal be entered.

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Decision last updated: 07 December 2016