Smart v Tasmania - [2013] TASCCA 15

[2013] TASCCA 15

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Smart v Tasmania [2013] TASCCA 15

PARTIES: SMART, Jamie Peter
v

STATE OF TASMANIA

FILE NO:  1025/2012
DELIVERED ON:  23 December 2013
DELIVERED AT:  Hobart
HEARING DATE:  1, 2 October 2013
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage of justice – Misdirection or non-direction – Misdirection – Reasonable doubt – Examination of doubt suggested.

Graham v R (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R (2009) 27 NTLR 1, followed.

Aust Dig Criminal Law [3466]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage of justice – Misdirection or non-direction – Non-direction – Conduct of accused after two crimes committed – Possible inference of consciousness of some wrongdoing – Edwards direction not given.

Edwards v R (1993) 178 CLR 193, distinguished.
Woon v R (1964) 109 CLR 529, referred to.
Aust Dig Criminal Law [3470]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Murder – Circumstantial evidence – Guilty verdict open to jury only if unchallenged expert evidence rejected.

Shepherd v R (1990) 170 CLR 573; M v R (1994) 181 CLR 487; Whitehorn v R (1983) 152 CLR 657; Chamberlain v R (No 2) (1984) 153 CLR 521; Morris v R (1987) 163 CLR 454; Chidiac v R (1991) 171 CLR 432, referred to.
Aust Dig Criminal Law [3475]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  A R Jacobs, Y Prenc
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASCCA 15
Number of paragraphs: 112

Serial No 15/2013
File No 1025/2012

JAMIE PETER SMART v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  BLOW CJ
  WOOD J
  PEARCE J
  23 December 2013

Orders of the Court

Appeal allowed.

Convictions and sentence quashed.

New trial of count 1 on the indictment.

Verdict of acquittal substituted on count 2 of the indictment.

Serial No 15/2013
File No 1025/2012

JAMIE PETER SMART v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
23 December 2013

Jamie Peter Smart was found guilty by a jury of one count of causing grievous bodily harm and one count of murder. On both counts he was jointly charged with Rhys Louis Gardner. Mr Gardner was also found guilty.
In February 2011 Shayne Waller lived in Unit 7 in Block A of the unit complex at Stainforth Court, near Cornelian Bay in Hobart. There are four similar blocks in the complex. Block A is the most easterly and separated by Stainforth Court from the other three, which are all adjacent to the Brooker Highway. Mr Wallers's nephew, Michael Williams, was staying with him at the unit and had been there for a couple of days.
At about 11.30am on Friday 18 February 2011, Teresa Williams, Mr Waller's sister and Mr Williams' mother, went to the unit and found both men badly injured. Michael Williams was lying somewhere near the middle of the lounge room floor covered up to his neck with a doona. Shane Waller was lying across his bed in his bedroom. Mr Waller was trying to get up from his bed. The police and ambulance services were notified. Michael Williams died at 3.22pm on that day. Mr Waller survived but has no useful memory of what happened and was not able to give evidence about how the injuries suffered by him and Mr Williams were caused.
The medical and photographic evidence at trial proved that both Mr Waller and Mr Williams had sustained severe blunt force injuries to the head and body consistent with having been kicked or stomped on. Both men had distinctive pattern injuries on their faces indicative of having been caused by the sole of a shoe or shoes.
The appellant and Mr Gardner were jointly charged with causing grievous bodily harm to Mr Waller and the murder of Mr Williams. Although another man, Andrew Woodhouse, witnessed some violence inflicted by the appellant and Mr Gardner on Mr Waller, there was no evidence at trial of an eye -witness to the injuries that caused the death of Mr Williams and the grievous bodily harm to Mr Waller. Thus the case against both the appellant and Mr Gardner was circumstantial.
During the evening of Thursday, 17 February 2011, the appellant, Mr Gardner, and two other men, Mr Woodhouse and Patrick Wright, spent time drinking at a hotel in Moonah called "The Mustard Pot". After leaving together in a taxi at about midnight they bought alcohol from another hotel and then spent an hour or so at the home of a friend. The four men then travelled together in another taxi to Stainforth Court. By the time they arrived it was in the early hours of 18 February. Mr Wright remained in the taxi and was driven home. The appellant, Mr Gardner and Mr Woodhouse went to Unit 21, the home of Brendan Hall and his partner. They knocked on the door. They were not let in and the police were called. Two police officers, Senior Constable Sutton and Constable Haas, attended in response to the call and found the appellant with Mr Gardner and Mr Woodhouse outside the units at about 3.40am. All three men appeared to be intoxicated "to a degree", and the appellant was issued with a liquor infringement notice for having an open can of alcohol. Those two police officers were there for about five minutes and then left.
At the trial, Mr Woodhouse gave evidence about what happened next. About 20 minutes after the police left, a man, who turned out to be Shayne Waller, came along. After some discussion he invited the three men, the appellant, Mr Gardner and Mr Woodhouse, to his unit. When they went inside Michael Williams was asleep on the couch in the living room. After a short time the appellant and Mr Waller argued. Mr Woodhouse said that the appellant started punching Mr Waller and "then Rhys jumped in". Mr Woodhouse saw the appellant punch Mr Waller about four times to the right side of his face. He saw Mr Gardner throw about three punches. He thought Mr Waller was "trying to defend himself". After he saw these blows inflicted Mr Woodhouse left the unit. He said, "I just rushed out of there" because "I'm just not interested in fights and that". He went to the highway nearby and called a taxi on his mobile phone. Andrew Lovell, the radio room manager for United Taxis, gave evidence that at 4.49am on 18 February a call came in to pick someone up from near 332 Brooker Highway and that the passenger was picked up at 4.53am.
Todd Monaghan lived at Unit 8 Stainforth Court, next door to Unit 7. He said that arguing and shouting was common from Unit 7 and had started on the night of 17 February at about 11pm. Then, between roughly 2am and 6am when he was in bed trying to sleep, he heard "banging and thumping going on" in that unit. He looked through the peep-hole of his door and saw a person of average height and wearing a "sort of white hooded jacket" come out of Unit 7 and walk straight out towards the main entrance of the unit block. His evidence about when it was he saw the man leave was not consistent. During his evidence-in-chief he said it was between when he woke up at 6am and when he went to work at about 8am. However, in cross-examination he agreed that the version he gave the police on 18 February 2011 - that "after this guy left the noise stopped, I went back to bed after this, I then went back to sleep, my alarm woke me up just before 6am" – was correct. Mr Monaghan also gave evidence that Unit 2, the unit below his unit, was occupied by a person named "Spike". He said that during the course of the night he heard Spike yell from downstairs as if he was upset about the noise that was being made.
Danny Pearce was employed as a cleaner and arrived at Stainforth Court at about 9.45am on 18 February 2011. After cleaning one block of units for about 25 minutes he walked along the street towards Block A. He saw the appellant walking along the street towards him. They said hello to one another as they passed. After cleaning Block A he then walked down the back steps. He saw the appellant on the grass outside the units talking on a mobile phone. Mr Pearce heard the appellant say in a loud voice, "What am I going to do?" Mr Pearce said that, as the appellant was making the phone call, the appellant was rocking backwards and forwards in a general motion.
The next observation of the appellant was outside Block A later that morning. Constable Eaves and Constable Langdale were called to Stainforth Court for an unrelated reason and arrived at 10.55am. At that time the police were not aware of any crime having been committed. Constable Eaves saw the appellant, whom he knew, with another male about five metres from the entrance of Block A walking towards the road. He spoke to the appellant. He said the appellant was wearing blue jeans and a T-shirt which was predominantly white with black text written on the front and back across the shoulders with the words "Silver Star". Constable Eaves said that the appellant's shoes were "predominantly white in colour, they were a casual shoe, they were of a sporting brand of which I don't remember, however, they weren't a running sneaker. They were somewhat similar to a skate shoe with a solid flat sole." Constable Eaves also noticed four small blood stains, approximately the size of a 20 cent piece, on the bottom right-hand section of the appellant's T-shirt in the right hip area. He saw another blood stain, approximately the size of a 50 cent piece, on the right shoulder of the T-shirt just above the text. Constable Eaves' evidence was that he asked the appellant where the blood had come from and "his response was the reaction of wiping his knuckles on his T-shirt and he told me that it was from a fight last night". Constable Eaves said that when asked whose blood it was the appellant replied, "It's mine". Constable Eaves saw swelling in the knuckles of the appellant's right hand and also saw cuts to the middle two knuckles with dried blood across all four knuckles of that hand.
Constable Langdale also saw blood on the bottom right-hand front of the appellant's T-shirt. She also noticed a drop of blood on his right shoe, somewhere near the toe.
Shane McDonald, the man known as "Spike", gave evidence. He occupied Unit 2. He said that in early 2011 people often dropped in to his place to have a drink, and such people often slept overnight even though he had only one bedroom with a single bed. The visitors often slept in his bed while he slept on a chair or on the floor. When cross-examined he said that a man named Doug Mansell and his daughter were drinking at his unit that night, and that he told the police, when interviewed on 20 February 2011, that when he woke on his couch at 6.30am on Friday, 18 February 2011, Mr Mansell and his daughter were in his bed asleep. Mr McDonald said he did not know the appellant or Mr Gardner and had no recollection of the appellant being at his unit that night.
Mr Mansell agreed that he had stayed at Spike's unit that night and could not recall seeing the appellant there.
Detective Constable Craig Long was called to Stainforth Court on 18 February 2011 to investigate the crimes. He arrived just after noon. At that time Mr Waller was in the ambulance parked outside Block A. At 1.15pm Detective Long saw a car drive past on Queens Walk, the road between Stainforth Court and the Cornelian Bay cemetery. The appellant was a front seat passenger in the car. His window was entirely down and he appeared to be staring towards the front of Block A, where the crime scene area had been cordoned off with police tape and police cars were parked.
On 20 February 2011, the appellant was being held at the Hobart Remand Centre. On that day Constable Milazzo seized the shoes that the appellant was wearing. It was the Crown case that those shoes were not the shoes being worn by the appellant at the time of the crime because they were inconsistent with the appearance of the shoes worn by the appellant as shown on the CCTV footage from the Mustard Pot, and were inconsistent with the shoes described by Constable Eaves.
It was the Crown case that the police searched four addresses associated with the appellant and did not find any shoes of the type described by Constable Eaves when he saw the appellant at about 11am on 18 February, or as shown on the CCTV footage to have been worn by the appellant at the hotel the night before. The T-shirt observed by Constable Eaves was found in a washing machine at one of the four addresses. It had been washed.
The State Forensic Pathologist, Dr Christopher Lawrence, gave evidence. He examined Shane Waller at the Intensive Care Unit at the Royal Hobart Hospital on 18 February at about 5.30pm. He made notes of his examination. He later conducted a post-mortem examination of Mr Williams. As to Mr Waller, Dr Lawrence observed a number of injuries, including a broken left cheek bone, and patterned injuries that, in Dr Lawrence's opinion, could have been caused by a shoe in a sort of stomping pattern. Dr Lawrence also observed a number of impacts on the right side of Mr Waller's back which caused broken ribs. Dr Lawrence drew diagrams of the patterns that he observed on Mr Waller's injuries.
An autopsy was performed on Mr Williams by Dr Lawrence on 19 February 2011 at 2pm. Dr Lawrence had inspected Mr Williams' body at the hospital the day before. His opinion was that the cause of Mr Williams' death was a head injury following an assault, contributed to by cirrhosis of the liver. The autopsy revealed head injuries with multiple patterned injuries on the head consistent with the sole of one or more shoes. Dr Lawrence's evidence was that there appeared to be at least six, and possibly seven, separate injuries to the head, and other injuries to the chest, abdomen and neck, and which may also have resulted from further blows. Death was caused by an injury to the brain causing a subdural haemorrhage and swelling of the brain with haemorrhages in the brain stem and cerebral contusions, that is, bruises to the brain itself. There was also bruising around the duodenum and rib fractures. Dr Lawrence explained that whilst Mr Williams had cirrhosis of the liver which may have accelerated his death due to an increased bleeding, it was not the major cause of his death. The patterns he observed on both Mr Williams and Mr Waller were described by Dr Lawrence as "consistent", suggesting to him that the same pair of shoes may have inflicted some of the injuries on both men.
On 19 February the police searched Unit 23, 40 Alexander Esplanade in Bellerive. They found a wallet containing items identifying Mr Gardner, a pair of "Etnies" brand shoes and a Champion brand hooded top. It was the Crown case that the shoes belonged to Mr Gardner.
Unit 7 was examined by scientific officers. It is a small one bedroom residence. The entrance is from a foyer near the building stairwell. Approaching the unit, the door is set to the right. It opens onto a kitchen/laundry area in which there were appliances including a refrigerator. The passageway, also set to the right, leads past the bathroom and bedroom to the left and opens into the living room at the rear. The adjoining unit, Unit 8, is a mirror image.
The forensic examination disclosed the presence of blood throughout the unit and outside the front entrance. There was blood staining on the inside of the front door and adjacent wall, and on vertical surfaces of the refrigerator. There was blood staining on the kitchen and hallway floor and in the bathroom sink. There were drops of blood on the bedroom wall and blood stained items on the bed and floor near where Mr Waller was found. In the lounge room where Mr Williams was found there was blood staining on the floor, blood drops on an armchair and the wall near the chair, blood drops on the doona and items of clothing found on the floor, blood drops on one set of venetian blinds and blood staining on the other venetian blinds and floor nearby. DNA from swabs of three blood stains or drops in the unit matched the DNA of the appellant. In the case of each swab, the chance of a person unrelated to the appellant also having the same DNA profile was less than one in 100 million. All three swabs were taken in the lounge room. One was from a cushion on the armchair and one was from the wall above the chair. The third was from a drop of blood on the venetian blind on the window in the corner of the room. There was no evidence of the presence of the appellant's blood elsewhere in the unit. There was no evidence of analysis of blood on the appellant's clothing. The issue of the shoes being worn by the appellant at the time of the crime will be referred to later in these reasons.
There was also forensic analysis of other units in Block A including Mr McDonald's unit, Unit 2. The examination and analysis disclosed blood stains on the sheet of the bed in that unit which matched the appellant's blood.
Analysis of blood found on both of the Etnies shoes belonging to Mr Gardner disclosed matches to the DNA of both Mr Williams and Mr Waller.
The Crown also called evidence from Senior Constable Rodney Walker. Senior Constable Walker gave expert opinion evidence about the shoe marks observed on Mr Williams and Mr Walker by Dr Lawrence, and which were photographed by the police. Constable Walker's evidence assumed particular significance in the trial and has similar significance in this appeal and will be referred to in more detail later.

Ground 3 – "What am I going to do?"

This is the only appeal ground that concerns a question as to the admissibility of evidence. It is therefore appropriate to deal with it first. The ground reads as follows:
"The learned Trial Judge erred in admitting the evidence of the witness Danny Pearce that he overheard the appellant on the telephone say the words 'What am I going to do?' when such words could not rationally be construed as an admission and were not otherwise admissible under an exception to the hearsay rule."
As we have said, Mr Pearce gave evidence of hearing the appellant, speaking on a mobile phone, say the words, "What am I going to do?" There was no evidence that Mr Pearce heard any other words that were spoken during the phone call. There was nothing in the words that Mr Pearce said he heard to indicate whether the appellant was talking about harm caused to Mr Waller, harm caused to Mr Williams, harm caused to both of them, or something entirely different.
At the trial, counsel for the appellant objected to Mr Pearce's evidence as to what he heard, arguing that it was not admissible evidence of an admission and, alternatively, that the probative value of that evidence was outweighed by a danger of unfair prejudice. The learned trial judge admitted the evidence, holding that it was "capable of being construed as a statement contrary to interest" and "not unfairly prejudicial".
The hearsay rule does not apply to evidence of an admission: Evidence Act 2001, s81(1). The word "admission" is defined in s3(1) of that Act. By virtue of par(b) of that definition, the words heard by Mr Pearce constituted an admission only if they were adverse to the appellant's interest in the outcome of the proceeding. We think they were. From this piece of evidence alone, the jury could not infer that the appellant knew anything about Mr Williams having been injured. However, taken in conjunction with the evidence of Mr Woodhouse and the evidence that suggested that the appellant had been bleeding from his knuckles, it was open to the jury to infer, from the evidence of what Mr Pearce heard the appellant say, that the appellant must have been at least aware of an injury to either Mr Waller or Mr Williams. Without that evidence, the jury might have been left with the impression that, although a number of people saw the appellant within hours after the vicious attacks on Mr Waller and Mr Williams, he showed no sign of concern about anything. The impugned evidence could be treated as evidence that he was concerned about something, and could therefore be regarded as a piece of circumstantial evidence that added just a little to the strength of the Crown case against him on each charge. It follows that the evidence in question was adverse to the appellant's interest in the outcome of the trial. It follows that the appellant's words amounted to an admission, and that evidence of what he said was prima facie admissible on that basis.

Section 137 of the Evidence Act provides as follows:
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
There was nothing about the evidence of the appellant saying "What am I going to do?" that might cause an emotional reaction on the part of a jury, triggering an instinct to punish, or otherwise interfering with their objectivity and impartiality. Sometimes a danger of unfair prejudice exists because of a risk that a piece of evidence will be given more weight than it deserves: Festa v R (2001) 208 CLR 593 at [51]. In determining the weight to be attached to this piece of evidence, it would be appropriate to take into account the following possibilities:
·     The appellant might have been talking about something completely unrelated to Mr Waller and Mr Williams.
·     The appellant might have been concerned that he would be unjustly accused of causing injuries that were not caused by him, and for which he was not responsible.
·     The appellant might have been referring solely to injuries caused to Mr Waller, having left Unit 7 before any harm was done to Mr Williams, and not being aware of any harm to Mr Williams.
The appellant's words indicated only that he was worried about something, and gave no indication as to what he was worried about. There is no reason to think that the jury might have missed that point, nor that they might have given this piece of evidence more weight than it deserved and jumped to a conclusion as to what the appellant was concerned about.
The probative value of this piece of evidence was small. However the danger of unfair prejudice, if any, was practically non-existent. It follows that the evidence was rightly admitted, and that ground 3 must fail.

Ground 6 – Unsafe and unsatisfactory verdict on the murder charge

The appellant contends that the jury ought to have entertained a reasonable doubt about his guilt on the charge of murder. This ground relates only to the murder charge. There is no similar ground in relation to the charge of causing grievous bodily harm.
At the trial the Crown, in contending that the appellant must have been guilty of murdering Mr Williams, relied solely on circumstantial evidence. It contended that the jury should conclude that the circumstantial evidence left no room for any reasonable hypothesis consistent with the appellant's innocence on the murder charge, but that there were three hypotheses consistent with his guilt which could not be excluded:
· That the appellant committed the crime of murder by physically attacking Mr Williams.
· That the appellant abetted the murder of Mr Williams by Mr Gardner.
· That Mr Gardner killed Mr Williams in the prosecution of a common unlawful purpose, in such circumstances that the appellant was guilty of murder by virtue of s4 of the Criminal Code.
Section 4 reads as follows:
"Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime."
The Crown provided particulars of the murder charge in relation to the appellant. In those particulars, the three alternative hypotheses relied on by the Crown were detailed. The particulars read as follows:
"Count 2
The accused JAMIE PETER SMART murdered MICHAEL DAVID WILLIAMS by:-
(a)Personally, kicking him to the head and/ or stomping on his head; and/ or punching him to the head; and/ or by
(b)ABETTING Rhys Louis Gardner to so murder Michael David Williams by
(i) Joining in part of an attack by the said Rhys Louis Gardner on the said Michael David Williams, and/ or by
(ii) Remaining in Unit 7, Stainforth Court whilst Rhys Louis Gardner inflicted further violence upon Michael David Williams after he personally had inflicted violence upon the said Michael David Williams as detailed in Clause (a) above, and/ or by
(iii) Inflicting violence upon Shayne Anthony Waller whilst Rhys Louis Gardner nearby inflicted violence upon Michael David Williams; and/ or by
(c)At a time after entering Unit 7, Stainforth Court in the early hours of February 18^th 2011, forming a common intention with Rhys Louise [sic] Gardner to prosecute an unlawful purpose in conjunction with one another namely to perpetrate a violent attack on the 2 occupants of that unit, and in prosecution of that purpose the crime of Murder was committed upon Michael David Williams, which crime was a probable consequence of the prosecution of that unlawful purpose."
There was no eye-witness evidence as to the violence inflicted on the deceased. There was no evidence of any admission by the appellant other than his mysterious utterance, "What am I going to do?"
"Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded": Doney v R (1990) 171 CLR 207 at 211. One of the hypotheses that needed to be considered in this case was the hypothesis that Mr Gardner alone murdered Mr Williams, after the appellant had left Unit 7, without the appellant having abetted him in the commission of the murder, and without the appellant being criminally responsible for the murder on a common purpose basis pursuant to s4.
The pieces of circumstantial evidence relied on by the Crown as tending to implicate the appellant in the murder of Mr Williams comprised the following:
·     The evidence that Mr Williams and Mr Gardner had been drinking together at the Mustard Pot, had gone to Stainforth Court together, had gone into Unit 7 together, and had been drinking there together.
·     The evidence implicating Mr Gardner in the attack on Mr Waller and the murder of Mr Williams.
·     The evidence of Mr Woodhouse to the effect that the other people in Unit 7 were the appellant, Mr Gardner, Mr Waller and Mr Williams; that the appellant and Mr Gardner started punching Mr Waller; that Mr Williams was asleep on the couch; and that he then went away.
·     The evidence of Mr Pearce that he saw the appellant about 25 minutes after his arrival, which was at about 9.45am; and that he subsequently heard the appellant, speaking on his phone, say in a loud voice, "What am I going to do?" (It was an agreed fact that the appellant made a call at 10.40am.)
·     The evidence of Constable Eaves as to the shoes he saw the appellant wearing, the T-shirt the appellant was wearing, the blood stains that he saw on that T-shirt, his observations as to the knuckles of the appellant's right hand (ie, swelling, cuts and dried blood), and of the appellant saying that the blood on his T-shirt was his own, and that it was "from a fight last night".
·     The evidence of Constable Langdale as to blood on the appellant's T-shirt and his right shoe. (She gave no description of the shoes.)
·     Evidence from Senior Constable Walker to the effect that a mark on the deceased's right cheek might not have been caused by Mr Gardner's shoe.
·     The DNA evidence which established that blood matching that of the appellant was found in the living room of Unit 7 on the cushion of an armchair, on the wall above that chair, and on a nearby venetian blind.
·     The evidence that blood stains were found on the sheet of a bed in Unit 2; that DNA analysis of that blood showed that it matched that of the appellant; and that people quite often slept over in a single bed in Unit 2.
·     The closed circuit television footage obtained from the Mustard Pot, which showed the shoes that the appellant was then wearing.
·     The evidence that police officers searched at four addresses associated with the appellant, but found no shoes matching those worn by the appellant at the Mustard Pot.
·     The evidence from Constable Long that at about 1.15pm he saw the appellant travel past the crime scene in the front passenger seat of a vehicle, and that he appeared to be staring at the crime scene.
The jury had no evidence as to when the appellant left Unit 7. There was the evidence of a taxi being despatched at 4.49am and a passenger being picked up at 4.53am. It was open to the jury to infer that Mr Woodhouse was that passenger. There was no evidence of the appellant's movements between Mr Woodhouse's departure from Unit 7 and Mr Pearce's first sighting of the appellant, evidently at about 10.10am, except for the evidence that suggested that the appellant might have slept in the single bed in Unit 2 where his blood was found on a sheet.
Mr Monaghan's description of the man he saw leaving Unit 7 matched Mr Gardner but not the appellant. If it was Mr Gardner that he saw, it is quite possible that the appellant could have left Unit 7 much earlier than Mr Gardner.
Many of the pieces of circumstantial evidence relied upon by the Crown, whilst consistent with the appellant being guilty of the murder, were equally consistent with him having left Unit 7 well before Mr Gardner left, and having had nothing to do with the killing. The evidence of Mr Woodhouse is equally consistent with the appellant's guilt and innocence. The question, "What am I going to do?" could have related to the attack on Mr Waller alone, and not the attack on Mr Williams. The appellant's blood on the cushion, the wall, the blind, and the sheet in Unit 2 could have resulted solely from the appellant attacking Mr Waller. The appellant's cut and bleeding knuckles could have resulted solely from him attacking Mr Waller. The blood seen by the police officers on his T-shirt and shoes could have come solely from the attack on Mr Waller. If he threw away the shoes that he had been wearing at the Mustard Pot, he might have done that solely in order to avoid them being used as evidence in relation an attack on Mr Waller. If he washed his T-shirt in order to get rid of blood stains, they may have been blood stains solely from an attack on Mr Waller. The evidence that he looked towards the crime scene from a passing car at about 1.15pm did not strengthen the Crown case at all.
Unit 7 is a very small unit. The violence in that unit was noisy enough for Mr Monaghan to hear "banging and thumping" in his adjacent unit. The injuries to Mr Waller were severe. The assault on him began in the living room where Mr Williams was asleep on the couch. Under ordinary circumstances, one would expect any person sleeping on that couch to have woken up when a vicious assault was in progress. However there was evidence that Mr Williams was heavily intoxicated. A blood sample taken from him at 12.30pm, when he was still alive, revealed a blood alcohol concentration of 0.23grams per 100ml. Ms Connor, a toxicologist, gave evidence to the effect that Mr Williams' blood alcohol concentration at 4.30am would have been in the vicinity of 0.352grams per 100ml. She also gave evidence that Diazepam and THC were found in Mr Williams' blood. In the light of that evidence, we think it possible that all of the violence inflicted on Mr Waller could have occurred whilst Mr Williams remained asleep or unconscious. His presence on the couch is not inconsistent with the hypothesis that he was murdered by Mr Gardner after the appellant left, without any complicity on the part of the appellant.
The strongest piece of circumstantial evidence was the evidence of Senior Constable Walker to the effect that the mark on the deceased's right cheek could have been caused by a shoe other than Mr Gardner's. However his opinion was that there were two possibilities as to the cause of that mark. One was that it was caused by an Etnies shoe of unknown size – Mr Gardner's shoes being Etnies. The other was that it had been caused by a shoe that he had not examined. He could not positively conclude that the mark was caused by one of Mr Gardner's shoes because the imprint on the cheek was incomplete. Mr Gardner's Etnies shoes were size 10. Their soles and heels had distinctive patterns. The heels had semi-circular ridges around them, and a herringbone pattern, with a stylised E in a circle in the middle of the heel. The soles had the word "Etnies" in large letters. The imprint on Mr Williams' right cheek displayed semi-circles, but not the herringbone pattern, the central circle, the stylised E, or any part of the word "Etnies". The semi-circular marks were measured, and the measurements did not correspond to the size 10 shoes. Senior Constable Walker expressed the opinion that the discrepancy could have been due to distortion of the skin. He therefore considered it possible that an Etnies shoe of unknown size had caused the mark, but he also considered it possible that it had been caused by some other shoe that he had not seen.
That opinion evidence was unchallenged. Nevertheless, it was open to the jury to reject the evidence as to the possibility of distortion, to reject the evidence that the mark was possibly caused by an Etnies shoe of unknown size, and/or to reject the hypothesis that the mark could have been caused by one of Mr Gardner's shoes. If they did reject that hypothesis, they could well have concluded that the mark must have been caused by a shoe that the appellant had been wearing, and had later thrown away. They were entitled to regard as fanciful the possibility that an unidentified visitor had come to Unit 7, participated in the murder, and melted away into the night.
Unless the jury rejected the evidence that suggested that the mark on the deceased's right cheek could have been caused by one of Mr Gardner's shoes, and reached a conclusion that it was caused by someone else's shoe, we consider that there could be no basis for the jury to exclude the hypothesis that Mr Williams was murdered by Mr Gardner alone without any criminal complicity on the part of the appellant. It must follow that it was not open to the jury to find the appellant guilty of murder unless they were satisfied beyond reasonable doubt that the mark was made by a shoe other than Mr Gardner's: Shepherd v R (1990) 170 CLR 573.
Ground 6 reads as follows:
"6 The verdict of the jury on the charge of murder was unsafe and unsatisfactory because:-
(a)the jury ought to have entertained a reasonable doubt about whether the appellant applied, or was present abetting the co-accused to apply, force to the person of the deceased; and
(b)even assuming the evidence was capable of supporting an inference that the appellant and his co-accused formed an intention to prosecute the unlawful purpose of assaulting Mr Waller it was not reasonably open to the jury to be satisfied that the murder/manslaughter of the deceased was a probable consequence of the prosecution of such purpose."
Ground 6(b) is based on a misconception. The Crown did not seek to prove beyond reasonable doubt that the appellant was guilty of murder on a common purpose basis in accordance with s4 of the Code. The Crown contended that there was no reasonable possibility that the appellant was not guilty of murdering Mr Williams, and relied on three possibilities as to how he might be guilty – as an attacker, as an abettor, or by virtue of s4. It did not contend that guilt by virtue of s4 could be proved beyond reasonable doubt. The primary question before the jury in relation to this charge was whether, on the evidence that they accepted, there remained a rational hypothesis consistent with the appellant's innocence.
With that in mind, the question for this Court is whether the verdict of the jury was "unsafe and unsatisfactory". In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe and unsatisfactory:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462)."
A verdict may be set aside as unsafe or unsatisfactory even if, as a matter of law, there was evidence upon which the accused could have been convicted: Whitehorn v R (1983) 152 CLR 657 at 660, 686; Chamberlain (No 2) (above) at 532, 601, 604, 618 – 619; Morris v R (1987) 163 CLR 454 at 461, 473; Chidiac v R (above) at 442 – 443.
It is necessary to consider whether, in our view, the jury ought to have entertained a reasonable doubt as to whether the appellant was guilty of the murder of Mr Williams. But for the evidence as to the mark on Mr Williams' right cheek, there was not one piece of evidence that could be regarded as inconsistent with the hypothesis that Mr Gardner alone murdered Mr Williams after the appellant left Unit 7, without any complicity on the appellant's part. It is therefore necessary to focus on the expert opinion evidence of Senior Constable Walker that suggested that the mark on Mr Williams' right cheek could, as one possibility, have been caused by one of Mr Gardner's shoes.
The jury had many photographs of Mr Waller and Mr Williams that depicted the marks on their bodies. Some of the marks were readily identifiable as imprints of shoes matching Mr Gardner's. Senior Constable Walker gave evidence that he had been trained through South Australia Police in shoe-mark comparison; that this was an internationally recognised field of study; that he had completed a considerable number of comparisons of pieces of footwear in the course of his duties and given evidence on the subject in Tasmanian courts; and that he had provided training for other members of Tasmania Police in the field. He gave evidence of a very thorough investigation into the marks on Mr Waller and Mr Williams, involving the examination of photographs, the taking of measurements, comparisons with Mr Gardner's shoes and 12 other pairs of shoes, detailed observations, and the preparation of diagrams showing how particular marks matched Mr Gardner's shoes, and the orientation of the shoes in relation to the heads of the victims.
At one point in his evidence he said:
"… footwear impressions on skin are – can be difficult to interpret especially on parts of the body that actually have the ability to deform, so places like the cheek and the lip where you get lots of skin movement, if you can imagine a significant force being applied to those areas, those areas will distort considerably whereas on the temple where you've got a bone underneath and again on the forehead where it's quite a solid surface you get a much cleaner, much more, from my perspective, much more usable impression than some of these ones on the loose areas of skin … it's notoriously difficult to interpret marks on those areas of the face for that very reason."

Subsequently, in his evidence concerning the mark on Mr Williams' right cheek, he said this:
"… as I've referred to in relation to the potential for distortion and the difficulty in analysing footwear impressions on some areas of skin, the cheek has a lot of ability to distort and so essentially the opinion that I have formed there is that that impression could have been made by an Etnie shoe of unknown size, or the other – and the radiating pattern is due to the distortion of the skin so the blow would have been on an angle which would have created this radiating effect of bruising going out from – or marks going out from that. The other alternative is that it's consistent with a pair of shoes that I haven't examined."
In our view, the evidence relating to the mark on the deceased's right cheek lacked probative force, to such an extent that the jury ought to have experienced a reasonable doubt as to whether the appellant had caused that injury. It follows, in our view, that the circumstantial evidence against the appellant in relation to the murder charge, taken as a whole, lacked probative force and displayed inadequacies to the extent that the jury ought to have experienced a reasonable doubt as to whether a rational hypothesis consistent with innocence, as detailed above, could be excluded. That is to say, we consider that the jury ought to have experienced a reasonable doubt as to whether the appellant was guilty of murder.
Ground 6 must therefore succeed. The appellant's conviction on the murder charge must be quashed, and a verdict of acquittal must be substituted.

Ground 1 – Misrepresentation not corrected

The appellant contends that, in the course of his closing speech to the jury, the Crown prosecutor misrepresented the evidence of Senior Constable Walker concerning the mark on the right cheek of the deceased, and that the learned trial judge erred in failing to correct what the prosecutor said.
The prosecutor said this to the jury:
"You've got the three sketches or diagrams he prepared in respect of the deceased, Mr Williams, showing his forehead, down there and across there, and then he came to the right hand cheek of Mr Williams, and his evidence there was, I suggest, that it was not at all consistent with an Etnies, it was from a – it could have been caused he said in his opinion by the application of pressure in some fashion and you make what you do of that but I take it to be that if I was to chop my hand like that or my face or somewhere else, eventually as the result of the pressure I applied, there might be some movement or swelling of the skin past that if I generally hit myself with a hammer or something but the other alternative was that it was a completely different pair of shoes."
The transcript records that, after the prosecutor suggested that Senior Constable Walker's evidence was that the mark was "not at all consistent with an Etnies", the appellant's senior counsel said, "Well that's just not right."
It certainly was not right. Senior Constable Walker's evidence, as we have said, was that, in his opinion, the mark could have been caused by an Etnies shoe of unknown size, or by another shoe that he had not examined.
The learned trial judge did not interrupt to correct the prosecutor. The closing speech of senior counsel for the appellant followed immediately after that of the prosecutor. He began as follows:
"Members of the jury, might I start in the middle and then go back to the beginning? In his enthusiasm for his missing shoe theory, my learned friend, Mr Jacobs, just misrepresented to you the evidence given by his witness, Constable Walker, the shoe print expert. He said to you a moment ago that Constable Walker's evidence was that the marks on Mr Williams' right cheek, the semi-circular marks on Mr Williams' right cheek were, and I quote Mr Jacobs, 'Not at all consistent with the Etnies.' And then a few minutes later he said to you that Mr Walker's evidence was to the effect that one of Mr Smart's shoes was on the face of Mr Williams.
Now, whirl back, that's just not right. It's not what Constable Walker said, and you don't have to believe me because you'll have a copy of the transcript in the jury room when you go to consider your verdict, and I invite you to go to page 470 of Constable Walker's evidence, and start at line 5 and go down to line 20 because you will see there that what Constable Walker said was:
However, my opinion on that is that it may have been caused by the Etnies.
Talking about these semi-circular lines on Mr Williams' right cheek, and he talked about the cheek in particular, some areas of skin, having a lot of ability to distort. And he then again said:
And so essentially the opinion that I formed there is that that impression could have been made by an Etnie shoe of unknown size.
Now, it was his second and lesser alternative explanation that the marks might have been consistent with a pair of shoes that he hadn't examined, some of the millions of pairs of shoes that he hadn't examined. So let's start with the correct evidence and when you go to consider your verdict, have a careful look at what Constable said there."
It seems, with respect, that the learned trial judge did not realise that the prosecutor had misrepresented the evidence. His Honour referred to the mark on the deceased's right cheek during his summing-up without correcting what the prosecutor had said. He reminded the jury that senior counsel for the appellant had said that the evidence was "misstated" and continued:
"He went through Constable Walker's evidence in some detail. You remember that and you have got the transcript about this and I don't need to remind you about it."
This ground cannot succeed unless the failure of the learned trial judge to correct the prosecutor's misrepresentation resulted in a miscarriage of justice: the Code, s402(1). A miscarriage of justice will occur in such a situation if it is reasonably possible that the misstatement of the evidence might affect the jury's verdict. Since the evidence in question related only to the murder charge, there is no possibility that the verdict on the charge of causing grievous bodily harm to Mr Waller might have been affected.
The prosecutor's misrepresentation was corrected by defence counsel. The jury was given the transcript. They had heard the evidence of Senior Constable Walker. All of those facts suggest that there was no realistic risk that the prosecutor's misrepresentation might have affected the verdict.
However, we have concluded that the jury ought to have entertained a reasonable doubt in relation to the murder charge. We therefore cannot rule out the possibility that the prosecutor's misrepresentation might have caused or contributed to the verdict on the murder charge. For the reasons that we have explained, the evidence as to the mark on the deceased's right cheek was critical. We therefore consider that the learned trial judge was obliged to correct what the prosecutor had said. His Honour erred by failing to correct the misstatement, and that may have had an impact on the verdict. We therefore consider that there was a miscarriage of justice. This ground must succeed, but only in relation to the murder charge (count 2).

Ground 7 – Reasonable doubt

Ground 7 asserts that the learned trial judge erred in his direction concerning the standard of proof. The ground of appeal relates to two aspects of the direction: first, that the jury was told each of the jury must examine a reasonable doubt; and second, in making reference to the testing of any doubt, held by the jurors. It was submitted that the direction was contrary to authority and amounted to a misdirection.
The trial judge's direction to the jury regarding the standard of proof is set out below with the two criticised aspects of the direction marked with italics. Once the trial judge had directed the jury as to the presumption of innocence, he moved on to the standard of proof, stating as follows:
"The words 'reasonable doubt' don't have any technical legal meaning they are ordinary words and they have their ordinary meaning. A doubt is something which you feel or know; you know what a doubt is. So as responsible citizens you'll know in your own hearts and minds what's reasonable. So you'll know what a doubt is and you, as responsible citizens, know what reasonable means. It's something that perhaps you think about every day without – another thing that you think about every day without really realising what's reasonable – is that reasonable? So if you put those two things together, a doubt, and you know what a doubt is and you think it's reasonable, well that's a reasonable doubt. So if you have a doubt and it's not a fanciful or farfetched or fleeting doubt, but a doubt about the guilt of the accused, and you can honestly say to yourself that you consider the doubt is a reasonable one in all of the circumstances, then that is a reasonable doubt and you would acquit because you have a reasonable doubt.
Now it can be put another way and it's this way; if there is a reasonable possibility of innocence, if you think it's reasonably possible that the accused is innocent it means – what that means is that the Crown case not – the prosecution case has not been established beyond reasonable doubt. So the Crown needs to exclude not all possibility of innocence, however remote, but the reasonable possibility of innocence – that's another way of looking at it.
A reasonable doubt, I think Mr Richardson [counsel for Mr Gardner] said something to you about this, a reasonable doubt is something which each of you must examine; that's correct. You have each sworn an oath or made an affirmation as an individual. It is true that a jury is not a committee to reach a consensus or a general feeling. You each have to assess the position from your own individual perspectives. You should each arrive at your own decision about all of these things. And the testing of any doubt lies within the individual's conscience and hearts and minds. So it's up to the individuals it's not a committee decision and it's not an exercise where you reach a consensus, a general view about things, it's something you each need to individually examine." [Our italics.]
By this stage of the summing-up, the jury had been provided by his Honour with a memorandum which summarised the direction regarding the presumption of innocence and the standard of proof, as follows:
"1 Questions of proof
1.1An accused person is deemed to be innocent unless and until the jury is satisfied beyond reasonable doubt as to guilt.
1.2The Crown has the burden of proving the guilt of the accused beyond reasonable doubt."
It was submitted for the respondent that the comments in question were not directions as to the standard of proof, but that the trial judge was referring to matters dealt with by Mr Richardson in his closing address as to the process of reaching a verdict. It was submitted that the words "a reasonable doubt is something each of you must examine" were actually a reference to Mr Richardson's closing address. It was submitted that the trial judge went on to give a direction that was entirely correct, that the jury was not to reach a committee-like consensus. It was submitted that by using words such as "each individual's conscience and hearts and minds", a trial judge conveyed the need for each juror to make his or her (own) decision and not just go along with the majority.
It has long been recognised that it is inadvisable for a trial judge to elaborate upon the concept of reasonable doubt because it requires no explanation, and because of the risk that it will lead to error. It is imperative that the trial judge must not obscure the "vital point that the accused must be given the benefit of any doubt which the jury considers reasonable": Kitto J in Thomas (1960) 102 CLR 584. The authorities make it clear that it amounts to an error of law to direct the jury that they should analyse a doubt in order to decide whether it is a reasonable doubt: Graham v R (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R (2009) 27 NTLR 1 at [144] – [215]. As stated by Windeyer J in Thomas at 605 – 606 "The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt … But it is not their task to analyse their own mental processes."
In Graham – a decision of this Court – there was agreement that the phrase "a reasonable doubt is something which you must examine" and a reference to "testing of any doubt" in stating that "the testing of any doubt lies within your own conscience, your own heart and your own mind" was impermissible. Those words suggested that a reasonable doubt was something that must be examined or tested: per Cox CJ at [19], Underwood J (as he then was) at [68], and Evans J at [71].
It seems clear that the first aspect of the direction under appeal, before the semi-colon, is a reference to remarks in the closing address of Mr Richardson about the process of arriving at a verdict and the need for individual jurors to be true to their individual views. Mr Richardson urged the members of the jury not to go along with the majority, stating:
"That's not what your role is, your role is to reach your own decision, based on your own thoughts and your own conscience and to be honest and truthful to that decision and the oath or affirmation that you've taken".
Mr Richardson did not speak about examining a reasonable doubt. Still, the jury would have understood his Honour to be referring to and endorsing the effect of Mr Richardson's address. While it may be said that his Honour also, in effect, approved an examination of a reasonable doubt with the affirmative remark, "that's correct", that remark related to what followed: "You have each sworn an oath or made an affirmation as an individual. It is true that a jury is not a committee …". The overall effect of that part of the summing-up was to endorse Mr Richardson's closing address insofar as it referred to the need for each juror to be satisfied, as opposed to the reaching of consensus.
However, his Honour went further, and the effect of the second aspect of the summing-up which is under scrutiny presupposed that there would be testing of any doubt by the individual jurors. Further, the final remark, "it's something you each need to individually examine" reinforced that it was necessary that there be some examination, although not necessarily examination of a reasonable doubt.
The two aspects of the direction under appeal occurred in the context of a direction about each individual juror reaching their own conclusion and the process of a jury reaching a verdict, as a process unlike a committee reaching consensus. We accept that this was the point of the direction, rather than to elaborate upon the nature of reasonable doubt, and certainly was not intended to convey that a reasonable doubt must be subjected to examination. However, it needs to be borne in mind that the trial judge had not moved away from the topic of the standard of proof. The jury had par1.1 of the memorandum in front of them, which addressed the presumption of innocence and standard of proof, and the trial judge was still speaking about matters on that topic. The issues of the process of arriving at a verdict and standard of proof are closely linked. Furthermore, to regard the direction as separate from the direction about the standard of proof, as submitted by the respondent, involves a subtle distinction that almost certainly would have escaped a jury.
His Honour's comments were made when assisting the jury about the critical stage of deliberations, when there may be disagreement amongst the jury members, and when assisting the jury as to how the members may resolve differences and reach a verdict. It is a stage when the standard of proof would be in play, and when it is important that the standard not become obscured. Realistically, it is likely that the jury members will in fact examine any doubt held by them and subject their views to some analysis. This was acknowledged in the dissenting judgment of Cox J in Pahuja (above) at 210, and referred to with approval by Underwood J in Graham (above) at [59]. Still, the testing or examination of doubt held by the jury should not be suggested by the trial judge.
The cumulative effect of the remarks made by the trial judge is that they would have suggested to the jury that the individual members of the jury should subject a doubt held by them to some examination to ensure it was indeed a reasonable doubt. There was misdirection.
The importance of a correct direction on the standard of proof is so fundamental that there is no room for the "proviso" – s402(2) of the Code – to be applied, and the conviction must be quashed and a new trial ordered: Wilde v R (1988) 164 CLR 365, per Brennan, Dawson and Toohey JJ at 373; Krakouer v R (1988) 194 CLR 202, per McHugh J at 226; Graham per Cox CJ at [20] and Underwood J at [69].

Ground 2 – Causation

Ground 2 is in the following terms:
"The learned Trial Judge in his directions regarding culpable homicide erred in directing the jury in accordance with the Common Law test of causation (substantial or significant cause) contrary to the express provisions of the Code, s153 and s154. [count 2]"
Those two sections provide as follows:
"153     Definition of homicide: Killing: When child becomes human being
(1)   Homicide is the killing of a human being by another.
(2)   Killing is causing the death of a person by an act or omission but for which he would not have died when he did, and which is directly and immediately connected with his death.
(3)   The question whether an act is directly and immediately connected with a person's death is a question of fact depending upon the circumstances of each particular case.
(4)   A child becomes a human being when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.
(5)   The killing of any such child is homicide if it dies in consequence of injuries received before, during, or after birth.
154     Special cases of homicide
A person is deemed to have killed another in the following cases where his act or omission is not the immediate, or not the sole, cause of death:
(a)where he causes bodily injury to the other which requires surgical or medical treatment, and such treatment causes death, if such treatment is applied in good faith, and with reasonable knowledge and skill, but not otherwise;
(b)where he causes bodily injury to the other which causes death, though it would not have caused death if the other had submitted to proper treatment or had observed proper precautions;
(c)where by actual violence, or threats, or intimidation of any kind, or by deceit, he causes the other to do an act or make an omission likely to cause death, and which he knows, or ought to have known, the other would be likely to do, and which causes the death of the other;
(d)where by any act or omission he hastens the death of another who is suffering under any disease or injury which would itself have caused death;
(e)where his act or omission causes death, but would not have caused death unless it had been accompanied by the acts or omissions of the person killed or of other persons."
Obviously s153(4) and (5) and s154 are irrelevant in this case. It is clear from the evidence of Dr Lawrence that Mr Williams suffered multiple blows to his head and died from one or more of them, and that cirrhosis of the liver may have accelerated his death.
In his summing-up about culpable homicide, the learned trial judge read s153(2) of the Code to the jury. In addressing the words "directly and immediately" he said:
"It's the direct and immediate connection of the act with the death. When you read 'immediately', immediately doesn't mean instantaneously or anything like that, it's a description of the connection and direct and immediate in that sense."

He went on:
"… so for the accused to have been responsible for the death of a person, it is necessary that his actions were a substantial or significant cause of bringing about the death. So there might be some other contributing factor, but as long as the acts of the accused were a substantial or significant cause of bringing about the death, that's sufficient."

It is this second part of his Honour's direction that forms the basis for the ground of appeal. The appellant submits that it is apparent from this direction that his Honour was postulating the "operating and substantial cause test" derived from the common law.
No Tasmanian decision has directly considered what is meant by "directly and immediately". No such consideration is necessary in this appeal. Neither is there any need to determine whether resort to common law tests of causation may aid interpretation of the Code. Counsel for the appellant conceded that it was difficult to envisage the jury failing to be satisfied that blunt force applied to the deceased had directly and immediately caused his death. The jury had to consider the possibilities that the appellant had inflicted the fatal injuries, or that Mr Gardner had inflicted them in such circumstances that the appellant was guilty of murder. If either of the two men inflicted the fatal blow or blows, it makes no difference if there was a subtle distinction between the Code's "directly and immediately" test and the common law's "substantial or significant cause" test as postulated by Lord Parker CJ in R v Smith [1959] 2 QB 35 at 42. If a particular individual inflicted the fatal blow or blows, each of the two tests was satisfied. This ground cannot succeed unless his Honour's reference to "a substantial or significant cause of bringing about the death" resulted in a miscarriage of justice: the Code, s402(1). Given the facts of this case, it is our view that those words could not have caused or contributed to a miscarriage of justice. This ground must therefore fail.

Ground 4 – Post-offence conduct

The Crown invited the jury to draw an inference that the appellant had disposed of the shoes that he was wearing on the night of the violence. The Crown relied on the evidence that the police had searched four addresses for the shoes described by Constable Eaves, and not found them. At the time of his arrest, the appellant was wearing a pair of shoes which were tendered on the trial as exhibit P18. In his closing speech to the jury, his counsel argued that the appellant had been wearing those shoes at all material times, and that there were no missing shoes.
When the Crown relies upon post-offence conduct as evidence of guilt, the circumstances sometimes require a direction in accordance with Edwards v R (1993) 178 CLR 193, to the following effect:
·     The jury must first make a finding as to whether the alleged conduct occurred.
·     The jury may treat the conduct as evidence of guilt only if they are satisfied, having regard to the relevant circumstances and events, that it reveals a knowledge of the crime charged, or some aspect of it, and that it was engaged in because of a consciousness of guilt.
·     The jury should consider the possibility that there is an innocent explanation for the conduct, including the possibility of an explanation unknown to them.
No such direction was given at the trial in relation to the assertion that the appellant had disposed of his original shoes, nor was one sought.
Ground 4 asserts that the learned trial judge erred in failing to give such a direction in relation to the Crown's assertion that the appellant disposed of his shoes because of a consciousness of guilt and a realisation that they would implicate him in the crimes charged.
There is a short answer to this. There was evidence of blood on the shoes, but no evidence as to whose blood it was. The appellant might have disposed of the shoes because of a fear that their examination by forensic scientists might have incriminated him in some violence, but not necessarily any particular violence. The jury was required to consider each charge separately, and to have regard to the totality of the evidence. The jury could go no further than to infer that the appellant had disposed of his shoes because they might implicate him in violence towards Mr Waller and/or Mr Williams. But, taking each charge separately, it was not open to the jury to conclude that the appellant did so because he knew that the shoes would have implicated him in violence towards Mr Waller, or in violence towards Mr Williams.
Windeyer J considered that sort of situation in Woon v R (1964) 109 CLR 529, and said the following at 541 – 542:
"But I think that Dr Coppel was right when he said that the inference which can be drawn from conduct and demeanour that displays a consciousness of guilt may depend upon whether there is other evidence pointing to the accused as guilty of the offence charged. When there is, false accounts of movements, false denials of knowledge of relevant facts, any conduct, utterance or demeanour demonstrative of guilt may go far to support a conclusion that the accused committed the very crime charged. But when there is no other evidence implicating the accused, an attitude of guilt, without more, may mean only that the accused was a participant in some wrongdoing, not that he committed the crime alleged, in manner and form alleged.
In R v Ciantar (2006) 16 VR 26 at [40], the Victorian Court of Appeal said:
"We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases."
An Edwards direction can be required only when it is open to the jury to draw an inference that the accused person's lies or conduct indicated a consciousness of guilt in relation to a particular crime. It follows that such a direction would have been inappropriate in this case. It would have been appropriate to direct the jury that, if they were satisfied that the appellant disposed of his shoes because of some consciousness of guilt, it could not automatically follow that he had a consciousness of guilt in relation to Mr Waller, nor that he had a consciousness of guilt in relation to Mr Williams. An Edwards direction of the kind contended for by counsel for the appellant was therefore not appropriate.
In this sort of situation, a jury should be given a direction as to the limited use that they may make of evidence of post-offence conduct. That is because there is a risk that the evidence will be misused. The jury should have been directed that, if they were satisfied that the appellant had disposed of his shoes, they could take that conduct into account in determining whether he had participated in violence, in a general sense, but not for the purpose of deciding whether he had participated in any particular crime of violence. Such a direction would have been consistent with the views expressed by the Victorian Court of Appeal in R v Ciantar (above) at [74] – [104].
If the jury was satisfied that the appellant had disposed of his shoes because they would implicate him in violent conduct, that may have been a conclusion that they were entitled to take into account in assessing the strength of the circumstantial case against the appellant in relation to each charge, but they could certainly make no greater use of any such conclusion.
Ground 4 must fail.
At the trial, the Crown relied on the evidence that the appellant's shoes could not be found, and the prosecutor urged the jury to treat that evidence as evidence of guilt of both charges. It was not permissible for that evidence to be used in that way, but the jury was not directed that that was impermissible. None of the grounds of appeal has raised that point.

Ground 5(a) – Leaving common purpose to the jury

Ground 5(a) reads as follows:
"5(a)the learned Trial Judge erred by leaving common purpose (Code, s4) as a basis for conviction when:
(i) there was insufficient evidence to support an inference that the appellant and his co-accused formed a common intention to prosecute an unlawful purpose [counts 1 & 2] and/or
(ii) assuming (contrary to (i)) that it was open to the jury to infer the formation of an intention to prosecute the unlawful purpose of applying violence to Mr Waller the murder/manslaughter of the deceased was objectively incapable of being regarded as a probable consequence of the prosecution of such purpose [count 2 only]."
So far as the murder charge (count 2) is concerned, this ground is misconceived. Because the case against the appellant was circumstantial, the jury could only consider hypotheses. As we have said, there were three hypotheses consistent with the appellant being guilty of the crime of murder – guilt as a killer, guilt as an abettor, and guilt on a common purpose basis under s4 of the Code. The jury was not in a position to be satisfied beyond reasonable doubt that he was guilty of murder by virtue of s4. However the learned trial judge needed to explain each of the three hypotheses so that the jury could then consider whether, on the evidence that they accepted, there were any other hypotheses that were both rational and consistent with innocence. Ground 5(a) asserts that the learned trial judge instructed the jury to the effect that it was open to them to find the appellant guilty of murder on the basis of s4, but that is not what he did. On our reading of the summing-up, it is quite clear that his Honour explained how a man can be guilty of a crime of violence pursuant to s4 when the violence has been inflicted by someone else in the prosecution of a common unlawful purpose, without going so far as to suggest that they could be satisfied beyond reasonable doubt that the appellant was guilty of murder on that basis.
In relation to count 1, the charge of causing grievous bodily harm to Mr Waller, the argument on behalf of the appellant was succinctly stated in his counsel's written submissions in the following paragraph:
"62The evidence of Woodhouse precluded a finding there was any discussion, much less a plan, between the Appellant and the co-accused to assault Mr Waller. Further, Woodhouse's evidence left open the possibility that the 4 punches he said the Appellant directed at Mr Waller all preceded the first punch thrown by the co-accused. Accordingly it is submitted it was not open to the jury to be satisfied that the Appellant and Gardner formed a common intention to do violence to Mr Waller, as opposed to Gardner acting independently and deciding to punch Mr Waller having seen the Appellant do so."
It was clearly open to the jury to be satisfied beyond reasonable doubt that the appellant and Mr Gardner had formed a common intention to prosecute an unlawful purpose, namely assaulting Mr Waller, in conjunction with one another. The formation of such an intention can be proved without evidence of discussion or planning. Sometimes when two or more assailants decide to participate in a joint attack on another person, it is not necessary for either of them to say anything, or to do very much, before that common intention is formed.
In McAuliffe v R (1995) 183 CLR 108, which concerned the doctrine of common purpose at common law, the High Court said, at 114:
"Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The undertaking or arrangement need not be express and may be inferred from all the circumstances."
The position is no different in relation to the formation of a common intention to prosecute an unlawful purpose within the meaning of s4 of the Code. It is true that Mr Woodhouse's evidence was that he saw the appellant punch Mr Waller about four times, then saw Mr Gardner punch him about three times, and then left. But, having regard to that evidence, and the evidence as to Mr Waller's injuries and the state of Unit 7 later, it was undoubtedly open to the jury to be satisfied beyond reasonable doubt that the appellant and Mr Gardner had formed a common intention to assault Mr Waller in conjunction with one another.
So far as the murder charge is concerned, it was open to the jury to conclude, on the basis of all the circumstantial evidence we have referred to, that it was reasonably possible that the appellant and Mr Gardner had formed a common intention to inflict violence upon Mr Williams in conjunction with one another, that Mr Gardner murdered Mr Williams in the prosecution of that purpose, and that the murder was a crime of such a nature that its commission was a probable consequence of the prosecution of that purpose.
For these reasons, ground 5(a) must fail.

Ground 5(b) – Withdrawal from common purpose

The learned trial judge gave directions to the jury as to the situation where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, one of them subsequently decides to withdraw from that arrangement, and a crime is thereafter committed in the prosecution of the original common purpose. Ground 5(b) asserts that the directions given by his Honour in relation to that topic "implied a reversal of the onus of proof thereby resulting in a miscarriage of justice". This contention is relied upon by the appellant in relation to both of the charges.
Counsel for the appellant submitted to this Court that the learned trial judge ought not to have given the jury directions about withdrawal from a common purpose; and that there was an unacceptable risk of the jury misinterpreting the directions as implying a reversal of the onus of proof, in that they might have reasoned that the appellant had failed to demonstrate effective withdrawal, and that they could therefore more readily infer that he was guilty of murder on a common purpose basis.
There was evidence that the appellant was still in Unit 7 when Mr Woodhouse left, apparently at about 4.50am, and that he was outdoors when Mr Pearce first saw him, apparently at about 10.10am. There was no evidence as to when, between those events, the appellant left the unit. Because this was a circumstantial evidence case, the jury had to consider all the possibilities. It was therefore appropriate for his Honour to direct them as to the law concerning withdrawal from a common purpose.
His Honour introduced the topic of withdrawal with these words:
"Now, the last thing in relation to common purpose which needs to be said is that you need to be satisfied beyond reasonable doubt that, if a common intention to prosecute an unlawful purpose has been formed, that particular accused, at whom you're looking at the moment, did not withdraw from or abandon the common purpose before the crime was committed." [Our emphasis.]
His Honour subsequently told the jury that the Crown needed to "establish" that there had been no withdrawal before the relevant crime, and a little later told them that the Crown needed to "prove" that there had been no withdrawal before the relevant crime. He proceeded to give an impeccable direction as to what constitutes an effective withdrawal, referring to the need for some act or gesture, the need for communication of the withdrawal, the timeliness of the withdrawal, and the taking of reasonable steps to undo anything that the person withdrawing had done. His directions were in accordance with the relevant authorities: R v Menitti [1985] 1 Qd R 520; White v Ridley (1978) 140 CLR 342; R v Wilton (1993) 63 A Crim R 359 (Zeeman J).
There was nothing in the directions given by his Honour to suggest that an accused person bore the burden of proving that he had effectively withdrawn from a common purpose. Ground 5(b) must therefore fail.

Conclusion

Grounds 1 and 6 have succeeded. They relate only to the murder charge, which was count 2 on the indictment. It follows that the appellant's conviction on the murder charge must be quashed and a verdict of acquittal substituted in relation to that charge.
Because ground 7 has succeeded, the conviction on the charge of causing grievous bodily harm, which was count 1 on the indictment, must also be quashed, as must the appellant's sentence, and there must be an order for a new trial on the charge of causing grievous bodily harm.