Smillie v Tasmania - [2017] TASCCA 26

[2017] TASCCA 26

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

CITATION: Smillie v Tasmania [2017] TASCCA 26

PARTIES:  SMILLIE, Adrian Wayne
  v
  STATE OF TASMANIA

FILE NO:  CCA 392/2014
DELIVERED ON:  24 November 2017
DELIVERED AT:  Hobart
HEARING DATE:  3 October 2016, 30 August 2017
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Directions to jury – Reasonable doubt – Particular cases – Far fetched or fanciful doubt distinguished – Examination and testing of doubt.

R v Dookheea [2017] HCA 36; RWB v The Queen [2010] NSWCCA 147, 202 A Crim R 209, followed.
Graham v The Queen [2000] TASSC 153, 116 A Crim R 108; Smart v Tasmania [2013] TASCCA 15, distinguished.
Aust Dig Criminal Law [2717]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Murder and wounding – Global sentence of 21 years' imprisonment with no parole eligibility for 12 years – Not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler (30 August 2017 only)
             Respondent:  A R Jacobs
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 26
Number of paragraphs: 145

Serial No 26/2017
File No CCA 392/2014

ADRIAN WAYNE SMILLIE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
24 November 2017

Order of the Court

Appeal dismissed.

Serial No 26/2017
File No CCA 392/2014

ADRIAN WAYNE SMILLIE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
24 November 2017

Two men were stabbed during an incident at Devonport on 25 December 2012. One of them, Benjamin Maxwell, died from his wounds. The other, Ashley Stott, survived. The appellant, Adrian Smillie, was charged with murdering Mr Maxwell and wounding Mr Stott. The two charges were tried together. The jury found him guilty of both charges. Estcourt J convicted him on both charges, sentenced him to 21 years' imprisonment, and ordered that he not be eligible for parole until he had served 12 years of that sentence. This is an appeal against those convictions and that sentence. The appellant has argued that the convictions should be quashed and that the sentence was manifestly excessive.
At the trial, the Crown case was essentially as follows. Mr Stott was living at a unit in a group of units in Croft Avenue, Devonport. The appellant had parked his vehicle in the forecourt of the group of units. An altercation developed, involving Mr Maxwell, Mr Stott and the appellant. During that altercation the appellant stabbed Mr Maxwell with a knife 18 times to the chest and arms, stabbed Mr Stott four times to his back, and stabbed him to the left arm. The Crown did not contend that the appellant intended to kill Mr Maxwell, but contended that he intended to cause Mr Maxwell bodily harm which he must have known to be likely to cause death. An unlawful killing in such circumstances amounts to murder: Criminal Code, s 157(1)(b).
At the beginning of the trial, the appellant's counsel told the jury in no uncertain terms that the appellant had stabbed and killed Mr Maxwell, and that he had stabbed Mr Stott. He made it clear that the appellant contended that he was not guilty of the charges because he had acted lawfully in defending himself and his partner, Ms Rintel. That is to say, the appellant contended that he had used force only in the defence of himself and Ms Rintel, and had used no more force than it was reasonable to use in the circumstances as he believed them to be: Criminal Code, s 46. Obviously, in relation to each charge, the jury was satisfied beyond reasonable doubt either that he did not act defensively, or that the amount of force used was more than was reasonable in the circumstances as he believed them to be. It was not suggested during the trial that any of the stab wounds might have been inflicted by anyone other than the appellant.
The appellant was represented by counsel at his trial, but not when the hearing of his appeal commenced. His notice of appeal originally contained only one ground relating to his convictions (ground 1). It read as follows:
"The verdict of the jury was unsafe and unsatisfactory in that the jury ought to have entertained a reasonable doubt about whether the Accused was criminally responsible".
When the appellant appeared without legal representation on the hearing of the appeal, this Court permitted him to make submissions as to contentions that did not fall within the scope of that ground of appeal. He was permitted to rely upon a large quantity of documentary material that had been provided to the Court. Amongst other things, it became clear that he wished to rely upon evidence as to various matters that was not presented at the trial. On 3 October 2016, at the conclusion of his submissions, the Court adjourned the further hearing of the appeal with a view to assessing the material put forward as new evidence and deciding whether any of it might make a difference to the outcome of the appeal. The parties were told that, if the Court concluded that none of that material might make a difference to the outcome of the appeal, then the Court would go on to consider the appellant's submissions, and to decide whether or not to call upon counsel for the State to make submissions.
For reasons that are stated below, we concluded that this was not an appropriate case for the appellant to be permitted to adduce new evidence in relation to any point. Also, for reasons that are stated below, we concluded that all the oral and written submissions made by the appellant at that stage should be rejected.
Further written material was sent to the Court by or on behalf of the appellant after the adjournment of the appeal. We took that material into account in deciding not to permit the appellant to rely upon new evidence, and in deciding to reject the submissions the appellant had made.
The appeal was listed for further argument on 30 August 2017. On that day the appellant was represented by counsel. His counsel sought and obtained leave to amend the grounds of appeal by adding another ground relating to the convictions, reading as follows:
"That the learned Trial Judge erred in his directions to the jury concerning the standard of proof."
That ground was fully argued on that day. It is dealt with below at [90]-[135].

The appellant's contentions when unrepresented

The appellant's principal contentions in relation to the convictions were to the following effect:
·     That the jury ought to have had a reasonable doubt as to whether he caused the death of Mr Maxwell.
·     That the jury ought to have had a reasonable doubt as to whether he stabbed Mr Stott.
·     That the jury ought to have had a reasonable doubt as to him lawfully defending himself and Ms Rintel.
·     That in various respects the learned trial judge failed to give the jury proper directions.
·     That there was improper conduct on the part of the police and the prosecutor.
·     That he has obtained further evidence that is fresh and compelling.
This is not an exhaustive list. There were other miscellaneous submissions and accusations made by the appellant. We will refer to them later.

Evidence at the trial

Two police officers went to the scene of the incident in response to a radio message. They found Mr Maxwell lying in the middle of the driveway of the units, still alive and conscious. One of them heard Mr Stott yelling for help, and found him lying face down in the doorway of his unit. Mr Maxwell was taken by ambulance to a hospital, where he died.
Only three eye-witnesses gave evidence against the appellant: Mr Stott, a neighbour of his named Corey Mansson, and Ms Rintel.
Mr Stott's evidence-in-chief was to the following effect. Mr Maxwell came to live with him in his unit a few weeks before Christmas 2012. The appellant had previously lived in another unit in the same block. On Christmas Day Mr Stott noticed the appellant's four wheel drive vehicle parked in the car park of the units. At about 9pm or 10pm he and Mr Maxwell went outside and noticed that a blue Commodore had arrived with the appellant and Ms Rintel in it. He and Mr Maxwell had a conversation with them. Mr Stott did not remember what happened next. He remembered waking up in a chair, walking outside, and seeing the appellant appear to punch Mr Maxwell in the stomach several times. He went closer and realised the appellant was using a knife. He tried to break up the fight. He got between them and pushed them apart, but got stabbed. He fell down. He did not remember going back inside his unit. He remembered ringing 000 for an ambulance. He remembered waking up in hospital.
That version of events was not shaken in cross-examination. Mr Stott conceded that he and Mr Maxwell had been drinking bourbon and smoking marihuana before the incident. He conceded that he was intoxicated, but not to the extent that he could not walk or talk. He said that he and Mr Maxwell were not armed when they went outside. He said he vaguely remembered rolling on the bonnet of the Commodore. He went into more detail about the attack on himself, saying that he felt impacts to his back, that the appellant was to his left, and that he "felt the impact coming pretty much from the left side". He said he remembered seeing Mr Maxwell lying on the ground when he was phoning 000. It was not suggested to him that he had stabbed Mr Maxwell or harmed him in any way.
Mr Mansson gave evidence to the following effect. At some time after 10pm he heard Mr Maxwell swearing. He went outside for a smoke. He saw the appellant jump out of his vehicle. He was cursing. He jumped on top of "one of my good mates". That was Mr Maxwell. Mr Maxwell was on the ground, on his stomach. The appellant was making vicious rapid hand movements. Mr Mansson saw roughly seven or eight of those movements. The appellant was on top of Mr Maxwell. He got off him, jumped back in his vehicle, and drove off "like a bat out of hell". A female was telling him to get back in the vehicle and take off. Mr Mansson saw Mr Maxwell lying in a pool of his own blood. As a result of something Mr Maxwell said, he went and got him some water in an orange mug. When he did that, he walked into Mr Stott's unit and found him lying in his own blood at his front doorstep. He had not seen what happened to Mr Stott.
Under cross-examination, Mr Mansson said that he remembered seeing both the appellant and Mr Maxwell get up from the ground and face each other. He said that the altercation continued, with them both trying to get at one another, more the appellant than Mr Maxwell. He confirmed that he did not see how they got down onto the ground in the first place, did not see a knife, and did not see anything happen to Mr Stott.
Ms Rintel gave evidence to the following effect. The appellant had left his vehicle at Croft Avenue. He and she went there in her vehicle for the purpose of transferring some items from her vehicle into his. She stopped when she saw Mr Maxwell and Mr Stott. She was on friendly terms with both of them. Mr Maxwell suggested a trip to a bottle shop to buy some alcohol, but the appellant explained that that would not be possible, for reasons that we need not go into. She could smell alcohol and cannabis on both Mr Maxwell and Mr Stott. At one point Mr Stott got onto the bonnet of her car and would not get off. She drove slowly forward and he rolled off. Before that, Mr Stott had bumped into Mr Maxwell, who turned around and "floored" him. She parked her car. She and the appellant both got out, and transferred things from her vehicle to his. Mr Maxwell and Mr Stott went back inside, came out again, and went back inside again. Then she heard screaming and yelling from Mr Stott's unit. Mr Maxwell came out, went straight up to the appellant, and said, "You fucked up my night. I'm gunna get you for this. I'm gunna fucking kill you for this, Adrian. Nobody fucks me around and gets away with it." She told the appellant to get into his car and get out of there. She saw him move off towards his car. She got into her car. The appellant drove towards the end of the driveway. She reversed a little. She saw Mr Maxwell running up the stairs towards Mr Stott's unit, with Mr Stott behind him. She began to move her car and turn it around. She saw Mr Maxwell and Mr Stott come back. She continued to manoeuvre her car. She looked again and saw all three men on the ground. The appellant was on his back. Mr Maxwell was on top of him. Mr Stott was on the ground holding the appellant's feet. She drove towards them, beeped her horn, and flashed her lights, without effect. She got out and tried to pull Mr Maxwell off saying, "Macca for fuck's sake. Macca get off. You're gunna kill him Macca. You're gunna kill him. Macca for fuck's sake get off him. He's a dad Macca. Get off him." She was unable to get Mr Maxwell off the appellant. She walked back to the car screaming for help. She saw the appellant get up from underneath and go to his car. She saw Mr Maxwell walking and staggering as if he was drunk. He was yelling out for someone to get an ambulance and the police. She saw Mr Stott walking back towards his unit. The appellant drove away and she followed him. In her rear vision mirror she saw that Mr Maxwell had a white-handled knife hanging out of his back. She and the appellant drove to Chichester Drive where they stopped their cars and had a conversation. She told the appellant that Mr Maxwell had been stabbed. He said that he knew that, and that he had taken the knife away and hidden it. She told him that the knife was still in Mr Maxwell's back. He said he might be going to gaol.
Under cross-examination, Ms Rintel added a little to that version of events. She said that when Mr Stott was on her bonnet, Mr Maxwell was laughing and talking at first, but suddenly threatened to kill the appellant and to bash his head in. She also said that she phoned the police at the appellant's request when they stopped their cars in Chichester Drive after the incident. She said she told the police where she was, and that the appellant was with her.
Nobody but Ms Rintel gave evidence to the effect that the knife remained in Mr Maxwell's back when the incident ended. The police officers who found Mr Maxwell did not find a knife in his back. A Mr Walsh from Chichester Drive gave evidence that he found the knife in a vegetable patch outside his home after seeing the appellant standing in the area. There was uncontradicted evidence that the appellant had disposed of it there.
The appellant did not give evidence at his trial. However he relied on material in two interviews that police officers conducted with him after the incident. Audio-visual recordings of both interviews were played and tendered during the trial. The first was conducted on 26 December 2012, and the second on 3 January 2013. In both interviews the appellant maintained that he had used force only for the purpose of defending himself and Ms Rintel.
In his first interview, he told the police the following things. Mr Maxwell and Mr Stott attacked him and Ms Rintel. He was dragged out of her car. One man had him pegged on the ground and was hitting him. He was hit to the side of the head. The other man had him by the legs. They would not let him leave. One of them had a knife. They were angry because he had told them that neither he nor Ms Rintel would drive them to a bottle shop. He grabbed the knife at one point when it was on the ground. He got Mr Maxwell a couple of times with the knife in the back when Mr Maxwell was on top of him. He did not know how Mr Stott got stabbed. He was sober at the time. Mr Maxwell and Mr Stott had attacked him before with knives and machetes. They were scary people. They both walked off afterwards.
In his second interview, the appellant was questioned by the police about various pieces of detailed information contained in statements that had been obtained from witnesses. It was during that interview that he admitted that he had thrown away the knife that was involved in the incident when he was in Chichester Drive.

Unsafe and unsatisfactory verdicts

In M v The Queen (1994) 181 CLR 487 at 494-495, Mason CJ, Deane, Dawson and Toohey JJ explained the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe and unsatisfactory as follows:
"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 The Queen (1983) 152 CLR 657 at 660, 686; Chamberlain (No 2) (above) at 532, 601, 604, 618–619; Morris v The Queen (1987) 163 CLR 454 at 461, 473; Chidiac v The Queen (above) at 442–443.
The arguments advanced by the appellant when unrepresented require us to consider whether the evidence as to the appellant killing Mr Maxwell, and/or wounding Mr Stott, and/or not acting lawfully in defence of himself and Ms Rintel, lacked probative force to such a degree that the jury ought to have experienced a reasonable doubt as to his guilt.

Causation of Mr Maxwell's death

When he was unrepresented before this Court, the appellant argued that the jury should not have been satisfied beyond reasonable doubt that he killed Mr Maxwell. As we have said, his counsel conceded at the beginning of the trial that the appellant had stabbed and killed Mr Maxwell.
The State Forensic Pathologist, Dr Lawrence, performed an autopsy on Mr Maxwell's body and gave evidence at the trial. He identified 18 stab wounds. His opinion was that Mr Maxwell died from stab wounds to the chest. He identified a number of wounds which, in his opinion, were superficial or did not cause major damage. That is to say, he gave evidence to the effect that Mr Maxwell died from some of the stab wounds, but not from all of them.
The appellant submitted that the fatal wounds could have been inflicted by somebody else. He argued that they could have been inflicted by Mr Stott, or by Mr Mansson, or even by someone unknown. He accepted that he stabbed Mr Maxwell a number of times, but did not accept that he stabbed him 18 times. In his first police interview, he admitted only to stabbing Mr Maxwell "a few times" or "three or four" times. In his second interview he said that he stabbed Mr Maxwell "about seven times", but went on to say, "… it was probably about five or six yeah about maybe seven, I don't know".

At his trial he did not contend that anyone else might have stabbed Mr Maxwell. No such suggestion was put to Mr Stott, Mr Mansson, or anyone else in cross-examination. The appellant's counsel, who was competent and experienced, did not argue that the appellant might not have inflicted all 18 wounds, but suggested to the jury that they should consider whether 18 stab wounds were too many for the appellant to have been acting lawfully in self-defence.
The appellant drew our attention to a body of evidence relating to hostility between Mr Stott and Mr Maxwell on the night in question. A number of witnesses gave evidence that they heard yelling, screaming, arguments or raised voices coming Mr Stott's unit. Ms Rintel said she heard "screaming and yelling". One of Mr Stott's neighbours, Mr England, also gave evidence of hearing yelling and screaming coming from the unit. Another neighbour, Ms Vercoe, gave evidence that she heard raised voices from outside the unit for probably about an hour. There was Ms Rintel's evidence that Mr Maxwell "floored" Mr Stott. However there was absolutely no evidence of any hostility between Mr Stott and Mr Maxwell after the appellant had stabbed Mr Maxwell and fled.
The appellant suggested that Mr Maxwell might have got up and returned to Mr Stott's unit after his departure. Two of Mr Stott's neighbours, Ms Ellings and Mr Clarke, gave evidence that they saw the two vehicles depart from the scene, then saw Mr Stott get up and stagger to his unit, and then saw Mr Maxwell get up and stagger out of sight. They saw Mr Stott reach his unit, but did not see Mr Maxwell go there. Some DNA matching that of Mr Maxwell was found in the unit, but he had been living there.
The appellant had taken away the knife that he had used to stab Mr Maxwell. That knife was tendered as an exhibit. It was not a serrated knife. The appellant relied on evidence from Dr Lawrence that some of the wounds showed a serrated pattern, and that he would have expected a serrated knife to have caused those wounds. The appellant contended that that evidence should have given rise to a reasonable doubt as to whether he inflicted the fatal wounds. However Dr Lawrence went on to say that the knife used by the appellant had two areas that might be capable of producing a serrated pattern.
The appellant argued that his DNA was not found on the knife found by Mr Walsh, and that that knife could not have been the knife that he used. There was unchallenged evidence that Mr Walsh had washed the knife that he found before giving it to the police. In spite of that washing, DNA profiles matching those of the appellant, Mr Maxwell and Mr Stott were identified in swabs taken from the knife. The profile matching that of the appellant was found in a swab of an area of red/brown staining on the right side of the blade 76mm from the tip of the blade.
There was evidence that a serrated knife was found on the floor of Mr Stott's unit. However the Crown led evidence that there was no sign of blood on that knife; that a screening test for blood gave positive results; but that the presence of human blood was not confirmed. There was also evidence of the results of DNA testing of two swabs taken from that knife. Both contained DNA matching that of Mr Maxwell. Both gave inconclusive results in relation to Mr Stott. The appellant and Ms Rintel were excluded in relation to one swab, but the results from the other swab were inconclusive in relation to them. Mr Stott gave evidence that he used that knife for ordinary activities including the cutting of food.
The proposition that Mr Stott may have killed Mr Maxwell could only be correct if, after Mr Maxwell had been stabbed and seriously injured by the appellant, he staggered into Mr Stott's unit, was inexplicably stabbed there by Mr Stott with a different knife, and then went back outside to the place where the police officers found him. That proposition is fanciful in the extreme. The proposition that Mr Mansson or some unidentified passer-by took a second knife and murdered Mr Maxwell is even more fanciful.
We reject the appellant's submissions as to this issue. There was no reason for the jury to have had a reasonable doubt as to who the killer was. The fact that it was not suggested to the jury that someone other than the appellant might have inflicted the fatal wounds did not result in a miscarriage of justice.

Stabbing of Mr Stott

The appellant argued that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that he stabbed Mr Stott. He relied on the following:
·     There was no direct evidence from anyone but Mr Stott to prove that it was the appellant who stabbed him.
·     Mr Mansson gave evidence of witnessing the altercation but not seeing the appellant stab Mr Stott.
·     In his police interviews the appellant did not admit to stabbing Mr Stott, whereas he readily admitted that he stabbed Mr Maxwell.
·     The police officer who found Mr Stott, Const Bartush, gave evidence that he asked Mr Stott how his injuries occurred, and that Mr Stott did not name the appellant or proffer any suggestion about how his injuries were caused.
The appellant submitted that no DNA matching that of Mr Stott was found at the scene. He was incorrect about that. A forensic scientist, Mr Grosser, gave evidence of full DNA profiles matching that of Mr Stott being found in five samples taken from places in the driveway and outside the units.
The appellant argued that Mr Stott might have stabbed himself inside his unit with a knife that he then washed. That is another proposition that is fanciful in the extreme. He had no reason to stab himself in the back and then wash the knife.
The appellant argued that Mr Stott's wounds resembled a "dog claw pattern" and argued that Mr Maxwell's dog may have inflicted them. A medical practitioner from the North West Regional Hospital, Dr Ruigrok, gave evidence as to the contents of the hospital's records relating to Mr Stott. The records showed that he presented with four stab wounds to the back of the chest and an obvious laceration to the left elbow. A CT scan showed that he had punctured left and right lungs. It was not suggested to the doctor that the wounds were caused by anything other than a knife.
There was ample evidence that entitled the jury to infer that it was the appellant who had inflicted Mr Stott's wounds. There was Mr Stott's evidence of being stabbed during the incident, that the impact came from the left, and that the appellant was to his left. There was Mr Mansson's evidence of finding him injured after the incident. There was similar evidence from Const Bartush. In his police interviews, the appellant admitted that Mr Stott was present during the altercation, and asserted that Mr Stott was involved in attacking him and holding him down. There was the evidence from Ms Ellings and Mr Clarke that they saw Mr Stott staggering when he returned to his unit after the incident.
We reject the appellant's submissions as to this issue. There was no reason for the jury to have had a reasonable doubt as to whether it was the appellant who inflicted Mr Stott's wounds. The fact that it was not suggested to the jury that he might not have inflicted Mr Stott's wounds did not result in a miscarriage of justice.

Lawful use of force

The appellant argued that the jury ought to have entertained a reasonable doubt in relation to his contention that he acted lawfully in the defence of himself and Ms Rintel when each of the stab wounds was inflicted.
The Crown bore the onus of proving beyond reasonable doubt that the appellant acted unlawfully when he inflicted the chest wounds from which Mr Maxwell died and when he wounded Mr Stott. The appellant argued that he used force lawfully to defend himself and Ms Rintel; that there was no unlawful use of force; and that the evidence that he used force unlawfully lacked probative force to such a degree that the jury ought to have had a reasonable doubt in relation to each charge. He relied on the following aspects of the evidence:
·     In his police interviews he described a history of animosity between himself and Mr Maxwell and Mr Stott. For example, in his first interview he said that he had had a lot of trouble from them; that Mr Maxwell had tried to bash him on his doorstep; that Mr Stott had got him kicked out of his house; that Mr Maxwell had major aggressive problems; that the two men had previously attacked him with knives and machetes; that they had attacked him three or four times; that they would not leave him alone; that he was scared of them; and that they were nasty people.
·     In his first police interview the appellant said that the two men undid a car door, dragged him out of the car, and attacked him. At first he said they had knives, but he corrected himself and said that there was "a knife". He also said that Ms Rintel was in danger. He said that Mr Maxwell was trying to strangle him, and that he could not move.
·     Ms Rintel gave evidence that she could smell alcohol and cannabis on both of the men; that Mr Stott was being silly; and that he got onto the bonnet of her car and would not get off.
·     There was the evidence, which is summarised above, of screaming and yelling in Mr Stott's unit prior to the incident.
·     It was dark at the time of the incident. The appellant argued that it was difficult for him to comprehend the threat against him.
·     Ms Rintel gave evidence, as referred to above, of her screaming at Mr Maxwell to get off the appellant.
·     Evidence was given by various neighbours of them hearing Ms Rintel, but they were not able to be precise as to what she was saying.
·     None of the Crown witnesses gave evidence as to how the altercation started. The only evidence as to how it started came from the appellant's answers to the police in his first interview.
·     There was evidence of a cut to the appellant's hand. Photos of his hand were tendered. One police officer, Const Taplin, said she observed a large laceration to his right palm. Another officer, Const Jamieson, said he noticed what appeared to be a quite deep laceration to the appellant's right hand, and that he applied a bandage and pressure to that wound. Dr Lawrence was shown a photo of the wound during his cross-examination. He said that it could have been a defensive wound, but that it could also have been caused by someone holding a knife, and the knife slipping and cutting the hand.
·     There was evidence that the appellant told the police that he expected Mr Stott to be armed.
·     There was evidence from Ms Rintel, and in the police interview, suggesting that Mr Maxwell became very angry as a result of the appellant telling him that neither he nor Ms Rintel would drive him and Mr Stott to a bottle shop.
·     There was no evidence that the appellant had any good or plausible reason to initiate the use of violence.
It was a matter for the jury to assess the reliability or unreliability of the assertions made by the appellant to the police, and of the evidence favourable to the appellant, particularly that given by Ms Rintel. The jury were entitled to reject the appellant's assertions and Ms Rintel's version of events as unreliable. There was an enormous disparity between the severity of the injuries suffered by Mr Maxwell and Mr Stott and the severity of the laceration suffered by the appellant. Even on his own version of events, every stab wound that the appellant inflicted upon Mr Maxwell was inflicted at a time when Mr Maxwell was unarmed. Apart from Ms Rintel's evidence and the appellant's assertions to the police, there was no evidence that Mr Stott had used or threatened to use force against the appellant, except to the extent that he tried to separate the appellant from Mr Maxwell. There was no suggestion that he had used or produced a weapon when he tried to do that.
Having regard to the state of the evidence, the jury might very well have found themselves in doubt as to who initiated the use of violence. But, even if they accepted that Mr Maxwell might have initiated the use of violence, and even if they accepted that the appellant might have believed himself and Ms Rintel to be under threat from both of the two men, it was not unreasonable for them to conclude that, in stabbing each of the two men as often, as forcefully, and as deeply as he did, the appellant used more force than was reasonable in the circumstances as he believed them to be.
We are therefore not satisfied that the jury ought to have experienced a reasonable doubt as to the unlawfulness of the appellant's conduct in stabbing either of the two men.
The appellant also made a number of submissions to the effect that additional evidence relating to self-defence should have been put before the jury. It is convenient to deal with some of those submissions now. The appellant's principal submissions in relation to this subject, and our comments in relation to them, are as follows:
·     The appellant argued that the jury, in assessing the circumstances as he believed them to be, should have taken into account the danger of one-punch killings. He provided to us various newspaper clippings about incidents in which individuals have died as the result of a single punch. As the appellant chose not to give evidence, the only evidence as to his beliefs as to the circumstances he faced was to be found in his answers during the police interviews. He did not argue that his counsel should have called him to give evidence. At best, his contention relating to one-punch killings might be taken as a suggestion that there was a miscarriage of justice because neither his counsel nor the learned trial judge referred to the fact that such killings occur. We are not satisfied that their failure to mention that fact caused or contributed to a miscarriage of justice.
·     The appellant argued that some sort of sample should have been taken from his ear in order to prove that Mr Maxwell was on top of him at one stage as he asserted. As no such sample was taken, one can only speculate as to whether any such sample might have provided evidence favourable to the appellant. In the circumstances, it cannot be said that the fact that no such sample was taken might have caused or contributed to a miscarriage of justice. If Mr Maxwell's blood had been found in the appellant's ear, it by no means would have followed that Mr Maxwell's stab wounds or those of Mr Stott were more likely to have been inflicted as a result of a lawful use of force.
·     The appellant argued that Mr Stott once stood over him with a knife. Such an incident was mentioned during a telephone conversation between the appellant and his mother on 29 December 2012, a few days after he was arrested. He argued that a recording of that phone call should have been played at his trial. That recording would not have been admissible as evidence. The appropriate course would have been to cross-examine Mr Stott about the incident, or for the appellant to have given evidence about the incident. Similarly, the appellant argued that Mr Stott regularly tormented him, and that evidence of his tormenting conduct should have been placed before the jury. However the presentation of such evidence might have had both advantages and disadvantages for the appellant. On the one hand, the jury might have considered evidence of previous hostilities to have amounted to evidence that the appellant had a motive for attacking Mr Stott. On the other hand, they might have concluded that he had good reason to be very fearful of Mr Stott, and that such evidence was therefore relevant to the circumstances as he believed them to be. It cannot be said that his counsel made either a right decision or a wrong decision in failing to explore this issue in cross-examination. We are not persuaded that the failure to present evidence relating to a knife incident and/or regular tormenting caused or contributed to a miscarriage of justice.

Trial judge's directions to the jury

The appellant advanced a number of contentions relating to the learned trial judge's directions to the jury. One such contention is that the jury were not given a proper explanation or direction about the DNA evidence. However the DNA evidence was relevant because it tended to prove that it was the appellant who stabbed both Mr Maxwell and Mr Stott. There was no dispute at the trial as to whether he was the person who stabbed them, but the Crown had to prove its case. It was not suggested that the DNA evidence was unreliable in any way. In those circumstances, there was no need for the learned trial judge to say much about the DNA evidence. However he summarised it for the benefit of the jury. He explained that DNA profiling was based on the testing of DNA molecules; that DNA profiles from samples of blood of unknown origin are compared with DNA profiles obtained from sources of known origin; that samples had been taken from Mr Maxwell, Mr Stott, the appellant and Ms Rintel; that there was no suggestion that the tests were not done correctly; that DNA evidence was evidence from which they could conclude that blood on the knife came from a particular person; that there was always a possibility that blood of unknown origin came from someone other than the four individuals; that the chances of someone else having a matching profile were calculated in relation to each sample; that they would have the transcript in the jury room and could check any particular piece of DNA evidence if they wished to; that the places from which samples were taken were shown on a plan that was part of a particular exhibit; and that the DNA evidence could possibly assist them in determining whether the Crown had established beyond reasonable doubt that the appellant had not acted in lawful self-defence.
His Honour then said this:
"Now, in that task – in determining that real issue, you may find it helpful to consider the asserted presence and position on people and things of DNA from the four persons whose DNA were the known samples. You might also find it useful if you do to consider the type of blood drops or stains said to have been swabbed at various places on people and on various items. On the other hand, you may find it of no great assistance at all when you consider the evidence, because you've got to consider that evidence along with all of the other evidence in the trial. That question's for you. You're the judges of the fact. You will remember, however, that Mr Hall cross-examined Mr Grosser about weaknesses in DNA evidence caused by secondary transfers of DNA. Keep that in mind.
Remember also the blood at the scene could have been caused by drops of blood, or blood at the scene and elsewhere could have been caused by drops of blood from the knife if Mr Smillie had walked around with the knife with Mr Maxwell's blood on it. You need to bear those things in mind."
In our view the directions given in relation to DNA evidence were entirely appropriate and sufficiently thorough.
The appellant also argued that the learned trial judge erred in failing to give warnings about potentially unreliable evidence pursuant to s 165 of the Evidence Act 2001. The relevant provisions in s 165 read as follows:
"(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)evidence in relation to which Part 2 of Chapter 3 or Part 4 of Chapter 3 applies;
(b)identification evidence;
(c)evidence the reliability of which may be affected by age, ill health, whether physical or mental, injury or the like;
(d)evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;
(e)…
(f)oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed or otherwise acknowledged by the defendant;
(g)…
(2) If there is a jury and a party so requests, the judge is to —
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."

It is clear from the introductory words of s 165(2) that a judge is only obliged to give a warning under that section if "a party so requests". No such request was made in this case. The appellant's submission on this point must fail on that basis alone.
Further, the arguments relating to the applicability of the section are all misconceived. For example, the appellant relied on s 165(1)(f) which relates to "oral evidence of questioning by an investigating official". In this case the evidence of the police interviews was not oral evidence. It was presented in the form of DVD recordings. The appellant relied on s 165(1)(d) and argued that Mr Stott, Mr Mansson and Ms Rintel were all witnesses "who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". However there was nothing to suggest that any of those people were criminally concerned in the relevant events. The appellant relied on s 165(1)(b), which relates to identification evidence, in relation to the evidence of voices heard by neighbours, but the neighbours did not give evidence of having identified any of the voices.
The appellant argued that the learned trial judge should have told the jury that Mr Maxwell was committing an indictable offence at the time of the altercation. In his summing-up, when summarising the defence case for the jury, the learned trial judge reminded them that the appellant's counsel had told them that Mr Maxwell and Mr Stott were the aggressors, and that it was Mr Maxwell who produced the knife and cut the appellant. His Honour was required to summarise the appellant's contentions as to what he believed the circumstances to be. However there was no need for him to tell the jury that Mr Maxwell's asserted conduct amounted to an offence or to an indictable offence. The jury simply did not need to be told that it is against the law to attack a person with a knife.
The appellant argued that the learned trial judge should have directed the jury as to the implications of certain items not being submitted for scientific examination and testing. Those items included an orange mug that Mr Mansson said he used to give Mr Maxwell a drink of water, the appellant's sunglasses, a black beret or cap, and Mr Stott's orange T shirt. We see no reason why his Honour should have mentioned any of those items. At most, he could have told the jury not to speculate as to what scientific examination and testing might have revealed. We are not satisfied that any of the items in question had sufficient significance to warrant any comment about them in the summing-up.

Conduct of police and prosecutor

During his cross-examination, Const Bartush gave evidence that at one stage when he was at Croft Avenue he spoke with Mr Mansson, and that Mr Mansson named the appellant as being the perpetrator. The appellant argued that that was false evidence. However the proposition that he was the perpetrator was put to Const Bartush by his own counsel, and his role as the person who stabbed the two men was not in dispute.
The appellant argued that before the first police interview he was not offered an opportunity to contact a lawyer, a family member or a friend. He was under arrest at the time of the first interview. The police officer conducting the investigation was therefore obliged, before any questioning commenced, to inform him that he was permitted to communicate with a friend or relative and a legal practitioner: Criminal Law (Detention and Interrogation) Act 1995, s 6(1). However one of the interviewing officers, Snr Const Schnierer, gave evidence that the appellant, after being arrested and cautioned at Chichester Drive, was "given the right to communicate with a lawyer, a relative or a friend" and did not take up that offer. That evidence was neither challenged nor contradicted. The appellant's counsel did not object to the tendering of the recordings of the police interviews. The answers that the appellant gave to the police during those interviews were exculpatory. In the circumstances, we do not need to determine whether s 6(1) of the Criminal Law (Detention and Interrogation) Act was not complied with. If it was not, that did not result in a miscarriage of justice.
The appellant argued that the police improperly interviewed him without disclosing that Mr Maxwell had died. However, at the beginning of the first interview, when the appellant had only been asked to state his name, date of birth, age and place of residence, Det Const Caine told the appellant that he and Det Const Schnierer were conducting enquiries in relation to the wounding of Mr Stott and "into the wounding of a Benjamin Murray Maxwell who has deceased [sic]". The appellant obviously understood what he had been told. He responded, "You're shitting me." A little later he said, "You should have told me that before."
The investigating officers did not have a duty to tell the appellant of Mr Maxwell's death any earlier than they did, nor did they have any duty to delay their questioning while he collected his thoughts. There is no merit in the appellant's submission as to this point.
The appellant also argued that the police acted improperly in interviewing him when he was suffering from a hand injury. There can be situations in which it is unfair for police officers to interview a suspect because of that person's state of health. From the answers the appellant gave to the officers' questions, there is no reason to think that his hand injury made it unfair for them to proceed with the interview.
The appellant argued that his sunglasses, which were located at the scene of the killing, were moved before they were photographed by the police. Snr Const Combes gave evidence that the sunglasses were not moved before they were photographed. That evidence was not challenged or contradicted. We have no reason to think that anyone might have moved the sunglasses, nor that moving them might somehow have strengthened the Crown case against the appellant.
The appellant argued that the police should have arranged testing of those sunglasses, and of his black beret, which was also found at the scene, to determine whether his blood was present on them. In our view the presence or absence of blood on those items would not have made any difference to the jury's assessment of the evidence relevant to self-defence.
The appellant argued that Mr Maxwell's boots have gone missing, and that someone may have removed them in order to strengthen the chances of him being convicted. He argued that his blood would have been found on those boots. It would appear that no one attached any significance to Mr Maxwell's footwear at the trial. Const Bartush said Mr Maxwell had black shoes. They can be seen in photographs that were tendered. We have no reason to think that scientific examination and testing of Mr Maxwell's footwear might have made any difference to the jury's verdict.
In the course of his closing speech, the Crown prosecutor asked the jury to consider the possibility that the appellant "appreciating the situation he was in, and what he'd done, deliberately cut his own hand a short time before the police arrived". The appellant argued that that was an unfair suggestion. There was no evidence that he had cut his own hand. Ms Rintel said during her cross-examination that one of his hands was severely cut. The Crown prosecutor did not re-examine in relation to the cut or at all. However, because there was no evidence from any of the Crown witnesses as to how the appellant cut his hand, there was nothing improper about the prosecutor suggesting that he might have done it himself. There was no unfairness in making that suggestion because the Crown prosecutor was addressing the jury first, before the appellant's counsel.
The Crown prosecutor led evidence from Mr Stott to the effect that the appellant had made accusations about six months before the incident to the effect that both Mr Maxwell and Mr Stott had been having sexual relations with Ms Rintel. Counsel for the appellant unsuccessfully objected to that evidence. The learned trial judge admitted it because it was relevant to motive. In his closing speech, the Crown prosecutor referred to "the persistent worry that Macca [Mr Maxwell] had had sexual intercourse with his partner". The appellant argued that the comments suggesting jealousy as a motive were prejudicial and irrelevant. We disagree. It was open to the jury to infer that sexual jealousy provided a motive for the appellant to be hostile and violent towards Mr Maxwell and Mr Stott. The evidence was admissible on that basis. There was nothing inappropriate about the prosecutor's comments.

Fresh and new evidence

The availability of fresh evidence after the conclusion of a criminal trial can result in a court of criminal appeal deciding that a miscarriage of justice has occurred and quashing a conviction, but only in limited circumstances. "Fresh evidence" is evidence that was not available at the time of the trial, or could not with reasonable diligence have been obtained at that time. The evidence must be relevant and admissible. The evidence must be credible, or at least capable of belief. And there must be at least a significant possibility that the evidence, if believed, would have led the jury, acting reasonably, to acquit. See Ratten v The Queen (1974) 131 CLR 510; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259; Mann v Tasmania [2008] TASSC 34, 186 A Crim R 87.
There is a distinction between "fresh evidence" and "new evidence". New evidence is "evidence which was available at trial or which could, with reasonable diligence have been discovered": Tasovac v Western Australia [2015] WASCA 24 at [82]. A conviction can be quashed as a result of uncalled evidence which was available at the time of the trial, or could with reasonable diligence have been discovered, but only if the Court is satisfied that the innocence of the appellant has been established, or that the new material raises such a doubt about guilt in the mind of the Court that the verdict should not be allowed to stand: Saunders v The Queen [2004] TASSC 95, 149 A Crim R 174, at [14].
When an appeal involving contentions as to fresh or new evidence is properly presented, there are a number of steps that the appellant needs to take. There should be a ground of appeal which refers to the fresh evidence or new evidence and asserts that the absence of that evidence from the trial has resulted in a miscarriage of justice. The ground of appeal should be supported by one or more affidavits of witnesses. The witnesses should be made available for cross-examination if the Crown so requests. At the hearing of the appeal, an application should be made under s 409(1)(c) of the Criminal Code for the Court to receive each such affidavit as evidence. None of those steps were taken in this case. Various papers and discs were presented to us by the appellant. We have considered that material as if all the proper steps had been taken to place it before us.
One of the discs provided to the Court appears to contain police photographs that were tendered on the trial, other police photographs that were not, and nothing else. There is no reason to think that any of the photographs was not available to the appellant's counsel at the trial, nor that any of those not tendered on the trial might have made any difference to the verdicts.
Another disc contains an audio recording of proceedings in the Magistrates Court at Devonport in 2011 when Mr Stott appeared as a defendant in an animal cruelty case. The appellant was not mentioned during Mr Stott's proceedings. The cruelty was not mentioned during the appellant's police interviews or at the trial. The appellant told this Court that he owned the cat to which those proceedings related. If evidence that the appellant knew of the animal cruelty had been given at the trial, the jury might have regarded it as tending to prove that the appellant had a motive for violence towards Mr Stott. On the other hand they might have taken it into account in assessing how dangerous the appellant thought Mr Stott was, that being a factor relevant to the circumstances as he believed them to be, and thus to the self-defence issue. The appellant may well have been in a position to obtain this evidence at the time of his trial. Even if he was not, we do not consider that evidence relating to Mr Stott's cruelty and the appellant's cat might have made any significant difference to the verdicts.
The material relied upon by the appellant includes extracts from his hospital records. They reveal that the wound to his hand was 10 to 12 centimetres in length, and that no abnormality was detected on x-ray. The jury received evidence of his hand injury. Photographs of it were tendered. Two police officers gave evidence that he had an injury to his hand when arrested. As we have said, Dr Lawrence said that the injury could have been caused as a defensive wound, or by the knife slipping in the appellant's hand. Those medical records would have been available at the time of the trial. In our view they would not have made any difference to the verdicts if they had been tendered.
The appellant relied on a photograph of the back of his head. Someone has written on that photograph, "king hit", "knocked to the ground", and "hit kurbing [sic]". There was ample evidence that the appellant had been on the ground in the parking area during the incident. It was certainly argued at his trial that his injuries were so much less serious than those of the other two men that that disparity tended to indicate guilt. The photograph does not show any serious injury to the back of the appellant's head. There is no suggestion that it was unavailable at the time of the trial. In our view it would not have made any difference to the verdicts.
It appears that forensic scientists from Forensic Science Service Tasmania undertook examinations and tests relating to a number of items that were submitted to them after the trial. These items may have been submitted at the request of the appellant or his mother. The results can be summarised as follows:
·     Three swabs were taken from an orange mug said to have been found in the area of the incident. Two swabs of a red/brown stain contained human blood, including DNA matching that of Mr Maxwell. A swab from the top rim and inner lip of the mug contained DNA matching that of Mr Maxwell.
·     A T shirt said to have been worn by Mr Maxwell had blood on it. DNA in that blood matched the DNA of Mr Maxwell.
·     Jeans said to have been worn by Mr Maxwell had blood on them. DNA from that blood matched the DNA of Mr Maxwell.
·     Three swabs were taken from a black beret that was said to have been found on the driveway outside the units at Croft Avenue. A swab of the inner headband, avoiding red/brown staining, revealed no human blood, but DNA from at least three contributors, including one whose DNA matched that of the appellant. A swab of a red/brown drop contained human blood and DNA from at least two contributors, with matches to the DNA of both Mr Maxwell and the appellant. A swab of another red/brown stain contained human blood and DNA matching that of Mr Stott.
·     An orange T shirt said to have come from the entrance to Mr Stott's unit had a red/brown mark on it which included human blood and DNA matching that of Mr Maxwell.
·     Jeans said to have been taken from the entrance of Mr Stott's unit appeared to have red/brown saturation staining and transfer stains on them. Samples from three areas contained human blood. Each sample contained DNA matching that of Mr Stott.
·     Ten swabs were taken from a grey hooded top that was said to have been found in the boot of a motor vehicle B73TH. It was reported that blood was possibly found in the first swab, and that human blood was detected in the other nine swabs. The first swab, which came from the inside of the hood and neck seams, avoiding red/brown staining, contained DNA from at least four contributors. The DNA of one contributor matched that of the appellant. The other nine swabs revealed DNA matching that of Mr Maxwell.
·     Other items were tested without any DNA matches being obtained.
The results relating to the orange mug are consistent with Mr Mansson's evidence that he gave Mr Maxwell a drink of water in an orange mug after the stabbing. The appellant argued that, because the DNA of Mr Mansson was not found on the mug, his evidence that he gave the mug to Mr Maxwell must have been untrue, and that Mr Maxwell must have walked into Mr Stott's unit to collect the mug himself. He argued that this supports the hypothesis that Mr Stott inflicted the fatal wounds. We disagree. Only three swabs were taken from that mug. Two were swabs of red/brown stains which must have come from the blood of Mr Maxwell. The third was from the top rim and inner lip of the mug. That contained a mixed DNA profile from at least two contributors. The test established that male DNA was present but was inconclusive regarding female DNA. No reliable conclusions could be reached as to the minor DNA profile. Mr Mansson could have been the minor contributor to the DNA profile. Mr Mansson could have touched other parts of the mug that were not swabbed.
The results in relation to all the items of clothing are consistent with Mr Maxwell, Mr Stott, and the appellant each having bled from wounds during the incident. In our view there is no reason why any of this evidence might have made any difference to the verdicts. None of the test results were likely to weaken the Crown's case in relation to the self-defence issue.
The appellant provided the Court with an extract from an article about the drawbacks of DNA evidence. However a number of forensic scientists gave evidence at the trial relating to DNA. One of them, Mr Grosser, gave a thorough explanation of the fundamentals of DNA evidence. Another, Dr Connor, was cross-examined by the appellant's counsel as to the limitations of DNA evidence. There is no reason why literature relating to the possible unreliability of DNA evidence would not have been available to the appellant's counsel at the time of the trial. There is no reason to doubt the correctness of the test results relied on by the Crown. We have no reason to think that providing the jury with the information contained in the article provided by the appellant might have made any difference to the verdicts.
The appellant provided the Court with an unsigned note that reads, "I need to get back on the witness stand & tell the truth how the police made me confused to change my story to their liking." The appellant asserted that this note was written by Ms Rintel. Without details of any revised version of events, we cannot be persuaded that there is a new version of events that is sufficiently relevant, cogent and plausible to raise a doubt as to guilt. A conviction can be set aside on the basis of a recantation in such a situation, or if the evidence of the recanting witness is considered to be so untrustworthy that it ought not be allowed to enter into the reasons for a verdict of guilty: Davies v The King (1937) 57 CLR 170; R v Bryer (1994) 75 A Crim R 456 at 458. As evidence suggesting lawful self-defence, Ms Rintel's evidence was highly exculpatory. We cannot envisage any revised version of her evidence being more favourable to the appellant and retaining credibility.
For these reasons, we do not think that any of the fresh evidence or new evidence that the appellant would like to rely on, if properly presented, would be sufficient to warrant the quashing of either of the two convictions.

Miscellaneous submissions and accusations

Mr Mansson swore an affidavit for the purpose of an inquest into Mr Maxwell's death. The appellant submitted that Mr Mansson said in that affidavit that he saw him with a knife, and that that was a lie. The affidavit is in the Crown papers for the trial. No knife is mentioned in that affidavit. Mr Mansson said in a statutory declaration that he provided to the police that the appellant showed him a knife during the week before the incident. He gave evidence as to that at the trial.

A finding that the appellant had acted defensively would have been a finding of fact favourable to the appellant. The fact that no such finding was made suggests that the learned trial judge was not satisfied on the balance of probabilities that the appellant at any time had acted defensively: R v Olbrich (1999) 199 CLR 270. It should also be noted that his Honour made no finding as to who started the fight. That suggests that he was not satisfied beyond reasonable doubt that the appellant had started it: Olbrich (above). He sentenced the appellant without making either a finding that he had started the fight or a finding that he had used force defensively.
The sentence was a global sentence for the crime of murder and the crime of wounding. It was not suggested that the appellant intended to cause Mr Maxwell's death. The learned trial judge sentenced him on the basis that he intended to cause Mr Maxwell bodily harm which he knew to be likely to cause death in the circumstances. On that basis he was guilty of murder by virtue of s 157(1)(b) of the Code. For sentencing purposes, it was significant that Mr Maxwell was unarmed; that he was killed in a public place in a residential area; and that the murder weapon was a long and dangerous knife.
The learned trial judge took into account the effect of Mr Maxwell's death on his mother and his three sisters. His mother had never recovered from the shock of the killing, was unable to function properly, and was unable to gain the motivation to do anything, including seeking psychological assistance. The three sisters were also devastated by their brother's death.
So far as the wounding was concerned, it is significant that the learned trial judge was satisfied that Mr Stott was stabbed when he was not acting aggressively, but was trying to separate the appellant and Mr Maxwell. It is significant that he was stabbed four times with a dangerous knife in public outside his home. Mr Stott was left with permanent physical injuries and ongoing psychological problems.
There were a number of mitigating factors that the learned trial judge took into account, as follows:
·     The appellant was 34 years old at the time of sentencing.
·     He had no prior convictions of any relevance.
·     His crimes were not premeditated.
·     He had had a difficult childhood and adolescence.
·     As an adult he had had psychotic symptoms and some long-held delusions, but had responded well to antipsychotic medication. However he did not appear to have any active delusions towards Mr Maxwell or Mr Stott.
A number of common mitigating features were absent. The appellant had not pleaded guilty. There was little indication of any remorse, but the learned trial judge took into account the possibility of that being attributable to the appellant's psychiatric disorder.
Having regard to all those matters, we think that the sentence of 21 years' imprisonment, with provision for parole after 12 years, was a reasonable one. It was not "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54, 202 CLR 321. It was not manifestly excessive. The ground of appeal relating to the sentence must fail.

Conclusion

For these reasons, we have decided to dismiss the appeal.