Talbot v The Queen

[2019] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

TALBOT v THE QUEEN

[2019] SASCFC 112

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)

27 September 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

Appeal against conviction by jury in the Supreme Court.

The appellant was jointly charged with Mr Eldon Crouch with the murder of David Saunders (the deceased) on the evening of 1 February 2017 at the deceased’s residence at Hayborough. The deceased and the appellant were known to one another. It was alleged the appellant stomped on the deceased’s head at least once causing his death. When the appellant was arraigned he entered a plea of not guilty to the charge of murder but guilty to manslaughter however that plea was not accepted by the prosecution.

The prosecution case against Mr Crouch was that he was guilty of murder on the basis of joint criminal enterprise with the appellant. The jury returned verdicts of not guilty to murder and manslaughter in respect of Mr Crouch.

The key issue at trial was whether by reason of the appellant’s intoxication he was able to form the requisite intent to kill or cause grievous bodily harm. 

The grounds of appeal can be summarised into the following propositions:

•  the judge erred in admitting the appellant’s record of interview (Ground 1);

•  the fair trial of the appellant miscarried as a result of the failure of the learned trial judge to order separate trials (Ground 2);

•  the fair trial of the appellant miscarried as a result of the admission of the evidence of pre and post offence alleged acts of aggression and attitude (Grounds 4 and 4B);

•  the judge erred in directing the jury as to the permissible and impermissible use of the acts the subject of Ground 4 (Grounds 4A and 4C); and

•  the verdict is unreasonable (Ground 5).

Held, per Stanley J (Kelly and Parker JJ agreeing):

1.  The trial judge did not err in admitting the appellant’s record of interview.

2.  The trial judge did not err in failing to order the separate trial of the appellant.

3.  The appellant’s trial did not miscarry as a result of the admission of the evidence of pre and post offence alleged acts of aggression.

4.  The trial judge did not err in his directions to the jury as to the permissible and impermissible use of the pre and post offence conduct evidence.

5.  The verdict was not unreasonable having regard to the evidence.

6.  Appeal dismissed.

R v Harris (1995) 64 SASR 85; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, distinguished.
R v Baden-Clay (2016) 258 CLR 308; Bunning v Cross (1978) 141 CLR 54; Dhanhoa v The Queen (2003) 217 CLR 1; R v Harbach (1973) 6 SASR 427; R v Glover (1987) 46 SASR 310; R v Heidt (1976) 14 SASR 574; Johnson v The Queen [2018] HCA 48; O’Leary v The King (1946) 73 CLR 566; R v Fleming; R v Maher [2017] SASCFC 135; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559, discussed.
R v Rockford (2015) 122 SASR 391; Driscoll v The Queen (1977) 137 CLR 517; Dietrich v The Queen (1992) 177 CLR 292; R v Christie [1914] AC 545; R v Lobban (2000) 77 SASR 24; R v Inston (2009) 103 SASR 265; R v Ireland (1970) 126 CLR 321; R v Wilson (1970) 123 CLR 334; R v MJJ, R v CJN (2013) 117 SASR 81; Gilbert v The Queen (2000) 201 CLR; Lane v The Queen [2018] HCA 28; R v Rodwell (1988) 148 LSJS 373; Roach v The Queen (2011) 242 CLR 610; R v Taheri [2017] SASFC 92; SKA v The Queen (2011) 243 CLR 400; M v The Queen (1994) 181 CLR, considered.

TALBOT v THE QUEEN
[2019] SASCFC 112

Court of Criminal Appeal:       Kelly, Stanley and Parker JJ

1. KELLY J:             I agree that the appeal should be dismissed for the reasons given by Stanley J. 

   STANLEY J:

   Introduction

2. This is an appeal against conviction.

3. The appellant was tried twice on a charge of murder.  The first trial ended in a mistrial.  At the second trial the jury found the appellant guilty of murder. 

4. The appellant was jointly charged with Mr Eldon Crouch with the murder of David Saunders (the deceased) on 1 February 2017 between 6:00 and 7:30 p.m. at Hayborough.  The prosecution case against Mr Crouch was that he was guilty of murder on the basis of joint criminal enterprise with the appellant.

5. When the appellant was arraigned he entered a plea of not guilty to the charge of murder but guilty to manslaughter.  The prosecution did not accept that plea in answer to the information.

6. The jury returned verdicts of not guilty to murder and manslaughter in respect of Mr Crouch.

7. The grounds of appeal are:

   (1)Ground 1:  the learned trial judge erred in admitting the appellant’s record of interview between the police and the appellant[1] up to page 14;

   (2)Ground 2: the fair trial of the appellant miscarried as a result of the failure of the learned trial judge to order separate trials;

   (3)Ground 3: the learned trial judge erred in failing to direct the jury adequately in relation to the bearing of intoxication on the evidence as to proof of the formation of specific murderous intent;

   (4)Ground 4: the fair trial of the appellant miscarried as a result of the admission of the evidence of prior and post offence alleged acts of aggression and attitude (the said acts);

   (5)Ground 4A: alternatively, the learned trial judge erred as a matter of law in his directions to the jury as to the permissible and impermissible use of the said acts;

   (6)Ground 4B: alternatively, the learned trial judge erred as a matter of law in admitting the evidence of the appellant’s aggressive behaviour towards Mr Bell’s dog and Mrs Martin;

   (7)Ground 4C: alternatively, the learned trial judge erred in his directions in relation to the permissible and impermissible use of the evidence of the appellant’s aggressive behaviour towards Mr Bell’s dog and Mrs Martin;  and

   (8)Ground 5: the verdict is unreasonable and cannot be supported having regard to the evidence.

   [1]    Exhibit P36.

8. A judge of this Court granted permission to appeal on Grounds 1, 2, 4 and 5.  The judge referred to this Court the question of whether permission to appeal should be granted in relation to Grounds 4A, 4B and 4C.  Permission to appeal was refused in relation to Ground 3.  An application for permission to appeal in respect of Ground 3 is no longer pressed.

   Factual background

9. The deceased lived at 90 Mentone Road, Hayborough, with Mr Crouch.  The appellant lived several hundred metres away at 46 Heysen Parade, Hayborough.  The appellant and the deceased were known to each other.  The appellant and Mr Crouch were friends. 

10. At approximately 2:20 p.m. on 1 February 2017, following an altercation with his son, the appellant was taken by a police car to 90 Mentone Road.  His conduct towards the police officers fluctuated.  His behaviour fluctuated between being aggressive and polite.  The deceased was present at his residence when the police arrived with the appellant.  The deceased and the appellant were observed by police to be talking and laughing together once he had alighted from the police vehicle.  Mr Crouch returned home approximately one hour later.  At approximately 6:00 p.m. Roger Perry, a friend of both the deceased and Mr Crouch, arrived at 90 Mentone Road.  He walked around the back of the house in the direction of the rear door.  He was confronted by the appellant who was inside the house.  The appellant spoke to Mr Perry through the door.  The appellant threatened to kill him and his family.  Mr Perry left the property.  Later that evening in a telephone conversation the appellant abused Mr Perry. 

11. Around 7:30 p.m. the appellant and Mr Crouch left 90 Mentone Road and walked along Sinclair Street towards the appellant’s residence.  There was evidence from various witnesses that in Sinclair Street the appellant was acting in an aggressive and threatening manner towards local residents, Mr and Mrs Martin, and a dog owned by another local resident, Mr Bell.  The appellant wanted to fight Mr Martin.  He accused Mrs Martin of infidelity.  He kicked Mr Bell’s gate so vigorously that a mounting bolt was sheared off.  On the other hand, there also was evidence of him behaving in a friendly manner towards Nina Sweet.  Eventually the appellant returned to his residence at 46 Heysen Parade.  Later that evening he was interviewed by police. 

12. Mr Perry returned to 90 Mentone Road between about 8.30 p.m. and 8.50 p.m.  Inside the house he discovered the deceased’s body.  An ambulance was called.  After unsuccessful attempts to resuscitate him the deceased was pronounced dead just after 9.00 p.m.

13. A forensic pathologist, Dr John Gilbert, gave evidence that the cause of death was blunt head trauma which resulted in brain injury and substantial bleeding.  This was attributed to a skull fracture that ran across the left side of the base of the deceased’s skull.  Dr Gilbert was of the opinion that a single stomp of considerable force on the deceased’s head was causative of the skull fracture and that the rest of the injuries were relatively minor and easily survivable.  Dr Gilbert gave evidence that due to the extent of the bruising associated with many of the deceased’s injuries, it was likely that he had survived for some time.  Dr Gilbert said that he could not be precise as to the length of time, which could be “minutes to hours”. 

14. It was the prosecution case that the deceased had died somewhere between 6:00 p.m. and 7:30 p.m.

15. Various witnesses gave evidence that during the earlier part of the day before police took the appellant to 90 Mentone Road, the appellant behaved in an aggressive and belligerent manner.  There was evidence of an incident at 12:30 p.m. at a dental surgery in Victor Harbor where the appellant threatened a dental assistant that if she did not repair his dentures he would come back with a gun and make her do so.  However, there was also evidence that later he kissed her as he left.  There also was evidence of a subsequent altercation between the appellant and his son at 46 Heysen Parade following which the appellant used a lump of wood to strike Mr Ian Hall-Philp, a friend of his son. 

16. The principal issue at trial was whether the prosecution could prove the specific intent to kill the deceased or cause him grievous bodily harm.  The defence case was that the prosecution had not excluded the reasonable possibility that the appellant lacked the requisite intention by reason of intoxication.

17. There was evidence that the appellant was affected by alcohol throughout the day and later that evening.  There was no dispute that the appellant had consumed alcohol throughout the day.   The evidence was that he had commenced drinking at 10.00 a.m.  His blood alcohol concentration (BAC) was measured on 2 February 2017 at 4:32 a.m.  By back calculation the appellant’s likely BAC at 7:30 p.m. on 1 February 2017 was found to be in the range from 0.22 to 0.25. 

18. There was also evidence that the appellant had continued to drink after the assault of the deceased.  The evidence was that he had consumed at least one more drink after he returned to his residence. 

19. Professor Jason White gave evidence about the effects of intoxication.  He said that, when intoxicated, a person may be unable to recall what happened during that period of time.  He said a person may be clumsy, uncoordinated, disinhibited and engage in impulsive, risky or reckless behaviour. 

20. The prosecution case relied on drawing inferences from the injuries suffered by the deceased and the appellant’s pre and post offence conduct to prove his intention at the time the fatal injury was inflicted.  The prosecution contended that the evidence of the appellant’s intoxication did not mean he was incapable of forming the requisite intent.  The defence emphasised that the prosecution had failed to exclude the reasonable possibility that the appellant did not form the specific intent to kill or cause grievous bodily harm, in light of the evidence of his extreme intoxication and the effect of Dr Gilbert’s evidence that the injury that was most likely to have been fatal was likely to have been caused by a single stomp to the head, rather than repeated blows.

21. Defence counsel put to the jury that it is one thing for a drunk, aggressive man who is clumsy and stumbling all over the place to intend to beat someone.  It is another thing altogether for that drunk, clumsy man actually to intend to kill or cause grievous bodily harm to that person. 

22. At the trial Mr Crouch’s record of interview with police was admitted into evidence as part of the prosecution case against him.

23. It is convenient to consider each ground of appeal in turn.

    Ground 1:  the judge erred in admitting the appellant’s record of interview

24. Police conducted an interview with the appellant commencing at 11:35 p.m. that night.  It took place in the carport of 46 Heysen Parade.  Over the appellant’s objection, approximately 15 minutes of the recording of the interview was admitted into evidence.  In the course of the police interview the appellant was administered his rights.  Once police had nearly finished providing the appellant with his rights he said: “My lawyer is Adam Richards; I ain’t gonna say shit”.  Upon police repeating his caution, the appellant responded: “My, my lawyer, Adam Richards, would tell me to say fuck all, and when you give your phone, I’ll give you his phone number, he’ll tell you to ring him”.   On the recording the appellant tells police he does not know the deceased and when advised a man has been assaulted and died tells police he has been at Heysen Parade.  The appellant then has a discussion with police regarding medication he takes and directs police to where it is stored in the house.  Police then ask the appellant to lift his jumper and the bottom of his pants to ensure there is nothing concealed.  Blood is visible on the appellant’s clothing.  There is then a discussion about wanting Mr Kropinyeri, who is his uncle, to be present for any interview.  Police are unsure whether Mr Kropinyeri may be a witness and do not agree to this occurring.  

25. The appellant then tells police his son robbed his bank account and that he does not have a licence and needs to pay $97 or he is disqualified from driving for six months.  Throughout this the appellant is drinking a can of beer.  When asked by police to stop drinking he proceeds to down the entire contents of the can.  Police advise the appellant the medication he requested is all over the floor and there is discussion about what medication he takes. 

26. On leaving the carport police refer to the messy state of the carport, to which the appellant replies: “What?  My son being a fuckwit”. 

27. The prosecution sought to use the record of interview to show that the appellant was not so intoxicated as to be unable to form the requisite intent for murder.  The prosecution contended that this evidence could be used by the jury to draw an inference as to the appellant’s level of intoxication at the relevant time. 

28. The trial judge ruled that the record of interview was admissible up until page 14 of the transcript subject to certain earlier portions being deleted.  The judge ruled that the evidence was relevant to the question of the appellant’s intoxication.  The remainder of the record of interview was excluded. 

29. The appellant submits that the judge erred in failing to exclude the whole of the record of interview.  The appellant submits that there were three bases upon which the evidence should have been excluded.  First, that the evidence was irrelevant to proof of his intention at the time he stomped on the head of the deceased, as at least four hours had elapsed since then and the appellant had continued to drink alcohol in the intervening period.  In those circumstances the jury could not reliably draw any inference as to his state of intoxication at the relevant time.  The evidence was, to use the phrase adopted by the High Court in R v Baden-Clay,[2] “intractably neutral”.[3]  Second, the interview evidence should have been excluded as the appellant had indicated at its commencement that he did not want to speak with police and wished to speak with his solicitor.  He thereby exercised his right to silence and, in those circumstances, the continuation of the interrogation was unlawful and improper.  Third, the interview evidence was more prejudicial than probative by reason of the lapse of time, the inference arising that the appellant had a history of violent criminal conduct, and him telling lies to police during the course of the interview.  

    [2] [2016] HCA 35, (2016) 258 CLR 308.

    [3] [2016] HCA 35 at [74], (2016) 258 CLR 308 at 332.

30. I do not accept these submissions. 

31. It is convenient to address the probative value of the evidence as this is germane to the first and third bases upon which the appellant contends the evidence should have been excluded.  In the four hours between the assault and the police interview there was evidence that the appellant had consumed at least one alcoholic drink.  In addition, Mr Kropinyeri, who was present at 46 Heysen Parade that night, gave evidence that the appellant could have consumed four beers between 8:00 p.m. and 10:05 p.m. although he could not be sure. 

32. The appellant submits that the evidence of him consuming alcohol, coupled with the significant delay in time following the assault, meant that the jury could not safely or reliably infer from the appellant’s conduct and behaviour at the time of the interview what his state of intoxication was at the time of the assault, particularly in circumstances where Mr Kropinyeri’s evidence cast doubt as to the amount of alcohol consumed subsequent to the attack on the deceased.  In these circumstances the appellant submits that the record of interview had no real probative value.  I do not accept this submission. 

33. The interview provided evidence of the appellant’s ability to understand the nature and content of the conversation with police; his ability to respond appropriately and spontaneously and to follow the course of the conversation; his awareness of the seriousness of his situation; his ability to think about his own welfare with regards to his need for medication; the location of the medication and his ability to provide direction to police to collect the medication from within the house; his ability to recall details of issues relating to his son paying for a licence disqualification; his ability to recall information including the name of his solicitor; the identification of the phone number in his phone; the choice to exercise his right to silence; and his ability generally to follow directions. 

34. The delay between the attack on the deceased and the interview did not deprive the evidence of relevance.  The record of interview demonstrated the appellant’s ability to function appropriately, notwithstanding his intoxication.  The jury was aware that he had continued drinking alcohol after the attack. The very purpose of admitting this evidence was to permit the jury to form its own assessment of the effect of the appellant’s intoxication and whether they were satisfied that notwithstanding the level of intoxication, he had formed the requisite specific intent.  There was no error in the admission of the evidence of part of the appellant’s record of interview on the grounds of relevance and reliability. 

35. The appellant submits that the evidence of the interview was illegally or improperly obtained and ought to have been excluded in the exercise of the judge’s discretion.   It is not entirely clear whether the appellant seeks to rely upon the principle in Bunning v Cross[4] or the general unfairness discretion as the basis upon which the judge should have excluded the interview evidence.  The principle in Bunning v Cross confers upon a court a discretion to exclude relevant and admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally.[5]  The general unfairness discretion exists to exclude evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair.  The purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted.[6]  It is generally accepted that the so-called Christie[7] direction to ensure an accused person receives a fair trial by excluding evidence which is more prejudicial than probative is an example of the application of the general unfairness discretion.[8]

    [4] [1978] HCA 22, (1978) 141 CLR 54.

    [5]    R v Rockford [2015] SASCFC 51, (2015) 122 SASR 391 at 397-400.

    [6]    Driscoll v The Queen [1977] HCA 43, (1977) 137 CLR 517 at 541; Dietrich v The Queen [1992] HCA 57, (1992) 177 CLR 292 at 299‑300, 326 and 362-364.

    [7] [1914] AC 545.

    [8]    Driscoll v The Queen [1977] HCA 43, (1977) 137 CLR 517 at 541; Bunning v Cross [1978] HCA 74, (1978) 141 CLR 54 at 74, 75; R v Lobban [2000] SASC 48 at [86], (2000) 77 SASR 24 at 49-50.

1. In any event, as this ground of appeal concerns the exercise of a discretion to allow or exclude evidence, having regard to the terms of s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), the ultimate question on this ground is whether the exercise of the discretion resulted in a miscarriage of justice. The correctness of the judge’s ruling on the application to exclude evidence is only indirectly relevant to the appeal. The correctness of the exercise of the discretion does not directly arise. The appellant must demonstrate that a miscarriage of justice flowed from the failure to exclude the evidence.[9] 

   [9]    R v Inston [2009] SASC 89 at [25] and [86]-[87], (2009) 103 SASR 265 at 272 and 287-288.

2. At the commencement of the interview the appellant indicated that he did not want to speak with police and wished to speak with his solicitor.  He submits that once he had indicated he did not wish to answer any more questions he had exercised his right to silence and the police should have terminated the interview.  The appellant contends it was improper for the police to have continued to interrogate him.  Further prejudice was occasioned to the appellant because this request disclosed to the jury that he had prior dealings with the criminal law such as to require the services of a solicitor.  The appellant submits that while ordinarily this could have been dealt with by way of a warning, in this case the prejudice could not be cured by a warning given Mr Crouch’s defence involved allegations of violence by the appellant and relied on good character evidence.  It is convenient to address this last submission in the context of Ground 2.

3. In addition, during part of the interview the appellant made certain statements that could have been construed by the jury as lies.  First, he told police that he did not know the deceased; and second, he told police that he had been at 46 Heysen Parade the whole night.  The jury was not directed as to the permissible and impermissible use of the appellant’s lies.  Absent such a direction, there was a risk that the jury approached the lies as evidence of consciousness of guilt.  I do not accept these contentions. 

4. In my view there was no error in the judge’s refusal to exclude the whole of the record of interview in the exercise of the Bunning v Cross discretion.  Further, there was no basis for the exclusion of the evidence of the record of interview in the exercise of the general unfairness discretion. 

5. There was no error on the basis that the police acted improperly by engaging in further questioning of the appellant after he stated that he did not wish to answer questions.  The preponderance of the evidence from the record of interview after the appellant said: “My lawyer is Adam Richards, I ain’t gonna say shit”, involved the appellant volunteering information.  There was no attempt by police to elicit information regarding the offence.  To the contrary, the later discussions focussed on how police could contact his lawyer, arrangements for an application for bail, who the appellant would have present at the interview, the clothes he would wear in the station and the medication he wanted to take with him.  The appellant also volunteered information and initiated aspects of these discussions having been reminded by police of his right to silence.  In circumstances where the police clearly did not attempt to elicit information about the offence and the trial judge found the appellant knew his rights, there was no impropriety by police.  There was therefore no basis established by the appellant for the exclusion of the evidence on the basis of police impropriety.  This was not a case in which the police continued to interrogate the appellant. 

6. The evidence was not obtained unfairly and there was nothing unfair in its admission. 

7. Even if some wrongdoing was established it was open to the judge to exercise the discretion to admit this limited evidence of the appellant’s interactions with police in light of its relevance to the issue of intoxication.[10]  First, there was nothing in the interview evidence which constituted an admission of the offence of murder and nothing the appellant said could be so construed.  This was not confessional evidence.  Second, the appellant clearly understood his rights and was exercising a voluntary choice to speak with police on other matters.  He declined to give evidence on the voir dire to contradict this proposition.  Third, the evidence had significant probative value.  The record of interview provided evidence as to the appellant’s state of intoxication at a time sufficiently proximate to the actus reus to be relevant to proof of the existence of the requisite specific intent at the time the fatal injury was inflicted.  The evidence was relevant as it bore on a fact in issue.  The record of interview was the best evidence available to the jury.  I reject any suggestion that the record of interview should have been excluded on the basis that the police officers could have given evidence of the appellant’s behaviour and an assessment of the extent of his intoxication during the interview.[11]

   [10]   R v Ireland [1970] HCA 21, (1970) 126 CLR 321 at 332-333.

   [11]   R v Wilson (1970) 123 CLR 334 at 340.

8. The evidence is said to be prejudicial in two ways.  First, that the evidence indicated that he had previous dealings with the criminal law.  Second, that he lied to police. 

9. Evidence of the fact that a 50-year-old man had previously had advice from a lawyer is not such as would cause a jury to reason impermissibly to guilt.  First, such a process would have been inconsistent with the warning as to bad character given by the judge.  Second, it required a great deal of speculation as to the nature of the criminal conduct the appellant may have committed in the past to be relevant to issues in this trial, and would have been inconsistent with the direction to the jury to consider its verdict solely on the evidence in the courtroom and nothing else.  Third, at worst the risk was that the jury might reason that the appellant was the sort of person who may have committed some violent criminal act in the past. However, there was no dispute at trial that the appellant had committed a violent assault that caused the deceased’s death.  He had pleaded guilty to manslaughter.  In these circumstances there was little prejudicial effect from any inference the jury might have drawn as to his past criminal conduct.  The risk now suggested by the appellant is that the jury may have speculated as to whether he had prior convictions, speculated as to the nature of those convictions, and reasoned as a result that he was the sort of person who would form an intention to do grievous bodily harm.  Such a risk is fanciful.  There was no risk of the jury speculating about some unknown act of previous violence and the intention he had at some previous time, but even if such a risk did exist, the warning given by the judge and the issues at trial were such that the probative value of the interview outweighed any prejudice arising from any inference that in the past the appellant had committed some violent criminal act.

10. The second way in which the evidence of the record of interview is said to have prejudicially affected the appellant is the evidence that he told lies to the police. 

11. The lies must be seen in context.  The appellant falsely asserted that he had been at 46 Heysen Parade all day and that he did not know the deceased.  Both statements were demonstrably false.  However, at trial, his involvement in the deceased’s death was not in issue.  In these circumstances there was no risk that the jury would have treated the lies as anything other than a false denial of his involvement in the death of the deceased as distinct from a false denial of the requisite specific intent.  The appellant’s submission that the jury would have reasoned that the lies were in some way relevant to whether he formed the intention to kill or inflict grievous bodily harm can be rejected.  Such a process of reasoning is far from obvious and in the absence of any suggestion by the parties to reason in this way, there seems little risk that the jury would have done so.

12. The insignificance of the lies can be assessed by the failure of the prosecutor to refer to them in his closing address.  In fact, the prosecutor expressly eschewed reliance upon anything said by the appellant.  The judge adopted the same approach.  He gave directions as to the use of the record of interview, namely, as evidence from which the jury could assess the appellant’s state of intoxication.  No direction was given in relation to lies.  None was sought. 

13. In Dhanhoa v The Queen[12] Gleeson CJ and Hayne J said:[13]

    It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies.

    (Footnotes omitted.)

    [12] [2003] HCA 40, (2003) 217 CLR 1.

    [13] [2003] HCA 40 at [34], (2003) 217 CLR 1 at 12.

14. The appellant seeks to rely on R v Harris[14] however that was a case in which numerous and lengthy lies were told to police and those lies loomed large in the prosecution case and were said to evidence a consciousness of guilt.  That is far from this case.  On the contrary, this was a case in which any further direction would only have complicated a straightforward issue and invited attention to a mode of reasoning not advocated by any party.  There was no risk of the jury misunderstanding the significance of the lies or the lack thereof.

    [14] (1995) 64 SASR 85.

15. In my view the probative force of the evidence outweighed its prejudicial effect.

16. There was no miscarriage of justice by reason of the admission of the record of interview. 

17. I would dismiss Ground 1.

    Ground 2:  the fair trial of the appellant miscarried as a result of the failure of the learned trial judge to order separate trials.

18. At issue is whether the joint trial of the appellant and Mr Crouch resulted in a miscarriage of justice.[15] 

    [15]   R v Collie, Kranz and Lovegrove (1991) 56 SASR 302 at 310.

19. The appellant made an oral application to discharge the jury and sought an order for separate trials after Mr Crouch’s antecedents, which contained no prior convictions for violence, were tendered late in the second trial.  The basis of the application was that the admission of Mr Crouch’s antecedents, which were inadmissible against the appellant, invited impermissible speculation as to the appellant’s character.  In short, the appellant complained that once the jury had evidence that Mr Crouch had no convictions for offences of violence the failure of the appellant to place evidence of his antecedents before the jury invited the jury to speculate that he must have a violent criminal history.  The judge rejected the application.  There was no error in the judge doing so. 

20. In R v Harbach,[16] in a joint judgment, Bray CJ and Mitchell and Sangster JJ said that when accused are charged with committing a crime jointly, prima facie there should be a joint trial.  A joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, although admissible against the other, will be before the jury.  A joint trial may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other.  Nonetheless these are highly relevant considerations to the exercise of the discretion whether to order separate trials in these circumstances.[17]

    [16] (1973) 6 SASR 427.

    [17] (1973) 6 SASR 427 at 432.

21. In R v Glover[18] King CJ explained the principle in the following terms:[19]

    I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together.  It is, generally speaking, very unsatisfactory for jurors to  have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them.  In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident.  There are cases, of course, in which that important consideration has to give way to other considerations.  There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.

    [18] (1987) 46 SASR 310.

    [19] (1987) 46 SASR 310 at 312.

22. Section 34T of the Evidence Act 1929 (SA) (Evidence Act) provides:

    34T—Severance

    Where—

    (a) 2 or more defendants are charged in the same information; and

    (b) a party proposes to adduce discreditable conduct evidence; and

    (c) a defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information,

    the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by—

    (d) evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or

    (e) evidence proposed to be adduced by another defendant which is not admissible against the applicant; or

    (f) the applicant's inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of section 34P.

23. Section 34T is a statutory direction as to how to exercise the court’s undoubted power to order separate trials of co-offenders where a party proposes to adduce discreditable conduct evidence. Whether to grant an application for separate trials is an evaluative judgment. Notwithstanding the terms of s 34T, where a court declines to order a separate trial in circumstances where a party proposes to adduce discreditable conduct evidence, an appeal court will only intervene if the refusal to order separate trials in those circumstances results in a miscarriage of justice.[20] 

    [20]   R v MJJ, R v CJN [2013] SASCFC 51 at [123], (2013) 117 SASR 81 at 113.

24. The appellant submits that his trial miscarried as a result of the refusal of the application for separate trials due to:  the admission of Mr Crouch’s record of interview;  the prosecution’s reliance on that record of interview to submit that the appellant urinated on the deceased;  the admission of Mr Crouch’s antecedents and his reliance on good character;  Mr Crouch’s defence of duress;  and the admission of the appellant’s record of interview.

25. I do not accept this submission.  

26. Whether the court should order separate trials turns on whether the evidence admissible against a co-accused is so prejudicial to the other accused that the prejudice cannot be cured by an appropriate direction to the jury, as a result of which the accused cannot obtain a fair trial.  The nature of the prejudice will be informed by the real issues at trial.  While the accumulation of factors could render a trial unfair where each factor alone would not, it is relevant in assessing the issue of prejudice to recognise what was, and was not, the basis of the application for the declaration of a mistrial and an order for separate trials. 

27. The appellant did not apply for a separate trial at the commencement of the first trial.  The appellant did not apply for a separate trial at the commencement of the second trial, by which time Mr Crouch’s reliance on the fact witnesses had not seen him be violent was clear from the cross-examination of the witnesses Bartley,[21] Perry[22] and Bloomfield[23] in the first trial.  Further, the appellant was on notice early in the second trial that Mr Crouch was invoking the defence of duress.[24]  That defence was based on Mr Crouch’s record of interview with the police when he alleged that the appellant assaulted himself and the deceased including by using a knife.  Yet it was only the admission into evidence of Mr Crouch’s antecedents late in the second trial which resulted in the application for a mistrial and an order for separate trials.  It can safely be inferred that to that point counsel for the appellant at trial acted on the proposition that any prejudice to the appellant from this evidence could be satisfactorily addressed by appropriate directions. 

    [21]   First trial T159.

    [22]   First trial T174-175.

    [23]   First trial T199-200.

    [24]   T58, 194, 491-497, 550 and 554.

28. As I have noted, the real issue at trial was whether the prosecution could prove the existence of the requisite specific intent on the part of the appellant.  If the issue had been whether the appellant had any involvement in the attack on the deceased then the evidence of which the appellant now complains would have had real prejudicial effect.  That included evidence of the appellant’s aggression towards Mr Crouch at 90 Mentone Road on the night the deceased was killed.  It would have suggested a general disposition for violence and aggressive behaviour.  However, this is not a case in which the appellant denied any part in the violence inflicted upon the deceased.  It must be borne in mind that the appellant, by his plea, had accepted that he had caused the death of the deceased.  The appellant’s admission of his part in the attack reduced the potential prejudice by reason of improper reasoning.  The evidence complained of was not logically probative of whether the requisite specific intent existed.  The suggestion by Mr Crouch that he was acting under duress as a result of the conduct of the appellant, and the possibility that the appellant might have had prior convictions for offences of violence, could not be probative of that fact. 

29. In any event, the prejudice was capable of being cured by directions.  The jury was directed that the evidence of Mr Crouch’s record of interview was not admissible in proof of the charge against the appellant.  Numerous directions to this effect were given in the course of the trial and in the summing up[25] as well as during counsel’s addresses.[26]  The Court is entitled to act on the basis that juries follow a trial judge’s directions.[27]  I do not accept the appellant’s submission that the “mental gymnastics” required of the jury in following the judge’s directions meant that the prejudice to him was incurable.  It was open to the jury to find the charge of murder proven without regard to the evidence of Mr Crouch’s record of interview. 

    [25]   T346, Appeal Book 109-110, 161 and 174.

    [26]   T654, 663 and 709.

    [27]   Gilbert v The Queen [2000] HCA 15 at [13], [31]-[32] and [52], (2000) 201 CLR 414 at 420, 425-426 and 431; Lane v The Queen [2018] HCA 28 at [42].

30. While Mr Crouch’s record of interview did allude to a motive, other witnesses also gave evidence of this motive.  There was evidence from Mr Hall-Philp and Mr Kropinyeri of admissions in their presence made by the appellant.  Both gave evidence that the appellant had said words to the effect that it was to do with a woman.  Mr Hall-Philp gave evidence that the appellant said that the deceased deserved it, “that was my girl”.  In addition there was evidence from Ms Bloomfield relevant to motive.[28]  This was also the subject of agreed facts.[29]  The submission that the clearest evidence of motive came from the record of interview of Mr Crouch cannot be accepted.

    [28]   T287-289.

    [29]   Exhibit P42 at [7]-[11].

1. The prosecutor did not expressly invite the jury to use Mr Crouch’s record of interview against the appellant.  The prosecution case was that the account given in the record of interview by Mr Crouch was false and that in any event it could not be used against the appellant.  The impugned comment by prosecuting counsel, namely: “[i]s one of the things that Mr Crouch said in the interview true, that Mr Talbot did urinate on Mr Saunders?” was a concession that Mr Crouch may have said something true but the account he gave in the record of interview should nonetheless be rejected.  There was no reliance on this statement against the appellant but in any event a submission was immediately put which made abundantly clear that the prosecution was not suggesting that this statement could be used as evidence against the appellant.[30] 

   [30]   T661-663.

2. The evidence of Mr Crouch’s good character is not sufficient justification for a separate trial.[31]  This was not a case in which Mr Crouch launched a specific attack on the appellant’s character.  The proposition that the appellant was prejudiced by his inability to put his own criminal antecedents in evidence relies upon conjecture that the jury would have reasoned that his failure to put into evidence his antecedents was because they would have revealed a history of violent offending and that, in the absence of evidence to the contrary, the jury would have acted on that inference contrary to the trial judge’s direction to only consider the evidence given in the courtroom.

   [31]   R v Rodwell (1988) 148 LSJS 373.

3. In any event, any conjecture by the jury as to what may have occurred in the appellant’s past would not have led the jury to speculate as to the intention he had formed on previous occasions, when those occasions were, the circumstances of those occasions, his level of intoxication on those occasions, the degree of violence on those occasions, and then how that might inform whether he had the requisite specific intention on this occasion.  This evidence was not highly prejudicial to the proper defence of the appellant given his plea to manslaughter.  That plea could have been used by the jury as an admission of his violent conduct.  His defence did not involve a denial of the infliction of violence on the deceased.  Rather the defence case was that due to the appellant’s level of intoxication, the prosecution could not prove that he had formed the specific intent required for murder. 

4. For similar reasons, Mr Crouch’s defence of duress was not highly prejudicial to the appellant’s defence because of the appellant’s plea to the alternative offence of manslaughter; the forensic evidence of blood on the appellant’s boots and track pants; the evidence of Mr Hall-Philp and Mr Kropinyeri of admissions made by the appellant that he had stomped on the head of the deceased in an attempt to squeeze blood out of his ears; and the directions given by the judge.  This significantly diminished the prejudicial effect of Mr Crouch’s defence. 

5. However, as part of Mr Crouch’s defence of duress his counsel adduced evidence from Mr Perry of discreditable conduct of the appellant. That evidence concerned the appellant’s aggression towards himself and Mr Crouch at 90 Mentone Road. Mr Perry described the appellant standing over Mr Crouch and the deceased who appeared quite scared. The appellant submits that this evidence attracts the operation of s 34T of the Evidence Act.

6. Section 34T requires a court, in considering an application for a separate trial, to give strong weight to a real possibility of prejudice from the admission of discreditable conduct evidence which is inadmissible against an applicant, or the applicant’s inability to adduce with respect to another accused relevant evidence that is precluded by the operation of s 34P.[32] I accept that the appellant may have been prejudiced by the admission of this evidence. However, the evidence adduced from Mr Perry did not fall within any of the circumstances referred to in s 34T. The evidence of Mr Perry was led by the prosecution against the appellant and further detail was elicited by the appellant’s counsel. The evidence elicited by counsel for Mr Crouch was to the same effect as the evidence already elicited and was not in any event inadmissible against the appellant. The evidence of Mr Perry was admissible against both Mr Crouch and the appellant regardless of whether separate trials were ordered. It is important to bear in mind that the prosecution case alleged a joint criminal enterprise between the appellant and Mr Crouch. In those circumstances separate trials will only be ordered where the failure to sever the trials results in grave prejudice to one of the accused.

   [32]   R v MJJ, R v CJN [2013] SASCFC 51 at [49], (2013) 117 SASR 81 at 96.

7. Finally, for reasons already discussed in relation to Ground 1, the admission of the evidence of part of the appellant’s record of interview was not highly prejudicial to his defence. 

8. The appellant seeks to rely upon the approach taken by this Court in R v Collie.[33]In Collie the Court of Criminal Appeal allowed an appeal where it found a joint trial had resulted in a miscarriage of justice.  In Collie three appellants, Collie, Kranz and Lovegrove, were charged with murder.  The appellants were tried on a joint information with three others, two of whom were acquitted and one of whom, Carter, was convicted of misprision of felony.  All appellants complained about the evidence of a man named Brannan.  His evidence was to the effect that he was present on the night of the murder.  He left the scene of the murder with Carter and Carter’s sister, Joanne Carter, after she told them that they should leave “because something was going to happen”.  All three moved behind a fence where Brannan observed three men drag the deceased through the back gate of a home unit to a car.  Brannan was permitted to give evidence admissible only against Carter that Carter identified the three men and said:  “It’s Harry, Crunch and Turtle”.  “Harry, Crunch and Turtle” were the nicknames of the three appellants. 

   [33] (1991) 56 SASR 302.

9. King CJ, with whom Cox and Debelle JJ agreed, found that the joinder of the trial of Carter on the charge of misprision of felony with the appellants on the charge of murder had the effect of introducing into the trial evidence inadmissible against the appellants which had great prejudicial potential.  The Chief Justice said that the appellants were faced at their trial with hearsay statements directly incriminating them, purporting to emanate from an eyewitness who could not be cross-examined by them.  While co-accused charged with offences arising out of the same incident in which they all participated generally should be tried together, there may be circumstances surrounding the case of the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative.  Sometimes an entirely justified refusal of a trial judge to accede to an application for separate trials may be seen, when all the evidence is in, to have resulted in injustice. 

10. The appellant submits that this is such a case. 

11. I do not accept this submission. 

12. The facts and circumstances of Collie can be readily distinguished from this case.  As King CJ acknowledged in Collie, the reasons which favour a joint trial of co-accused had little force in relation to Carter who was not charged with committing a crime jointly with the appellants but rather of committing a quite different offence of concealing their crime.   However, in this case the appellant and Mr Crouch were each charged with the murder of the deceased.  Further, the issue in Collie was not whether specific intent was proved but whether the evidence proved the appellants’ involvement in the commission of the crime of murder.  The evidence of Brannan, admissible only against Carter, implicated the appellants in the murder.  By way of contrast, in this matter there was no issue as to the appellant’s involvement in the death of the deceased.  The issue was proof of his intent. 

13. In Collie it was not necessary that Carter be present in the dock for the jury to understand all of the respective accounts and explanations which were given by all alleged participants in the crime of murder.  Brannan’s evidence of Carter’s observation that the three men dragging the deceased through the back gate of the unit to a car were the appellants was gravely prejudicial to them.  It was only allowed because of its admissibility against Carter.  Carter did not give evidence at the trial.  But the ratio of the Court’s conclusion that the failure to order separate trials resulted in a miscarriage was the combination of the hearsay evidence of Carter’s identification of the appellants at the scene and evidence given by Lovegrove of rumours circulating in the neighbourhood implicating Collie and Kranz in the murder.[34] 

    [34] (1991) 56 SASR 302 at 311.

14. The Chief Justice observed that the prejudice to two of the appellants, Collie and Kranz, arising from statements attributed to Carter, was compounded by evidence, which was inadmissible against them, in the case of the other appellant, Lovegrove.  Lovegrove’s record of interview implicated them directly.  As King CJ observed, this is a common problem in a joint trial and ordinarily can be met satisfactorily by an appropriate direction to the jury.[35] 

    [35] (1991) 56 SASR 302 at 311.

15. Finally, unlike the position on this appeal, none of the appellants in Collie had entered a plea of guilty to manslaughter. 

16. Whether considering the evidence said to be highly prejudicial to the appellant in isolation or cumulatively, there was no miscarriage of justice by reason of the failure to order separate trials. 

17. I would dismiss Ground 2.

    Grounds 4 and 4B:  the fair trial of the appellant miscarried as a result of the admission of the evidence of pre and post offence alleged acts of aggression and attitude

18. It is convenient to address Grounds 4 and 4B together. 

19. The prosecution relied upon a threat to kill Mr Bell’s dog, and the appellant’s verbal abuse of Mrs Martin, accusing her, in the presence of her husband, of having an affair with another man, as evidence of a specific intent to kill or inflict grievous bodily harm on the deceased.  The prosecution also relied on other evidence of the appellant’s anger, aggression and threats to kill in different circumstances towards different persons unrelated to the deceased as probative of the specific intent to murder the deceased. 

20. The appellant submits that his trial miscarried as the jury was invited to use his general disposition to violence as evidence of the specific intent to murder. The appellant submits that such reasoning necessarily is prohibited by s 34P of the Evidence Act. He contends the evidence of these events was disconnected from the attack on the deceased. The appellant contends they were separate episodes with different actors, adopting the analogy of Bray CJ in R v Heidt,[36] who referred to two episodes where the accused was involved in separate scuffles with security officers and police respectively as being like “two successive scenes of a play with the curtain dropped between them”.  Yet in this case the trial judge directed the jury that the acts were relevant to the appellant’s intent at the time of the unlawful killing of the deceased at 90 Mentone Road. 

    [36] (1976) 14 SASR 574 at 580.

21. The appellant submits that the evidence of his conduct went no higher than suggesting he was loud, agitated and had a tendency to be verbally aggressive.  Any probative value this evidence had was outweighed by its prejudicial effect.  He submits that to invite the jury to consider the events involving aggression and violence prior to and after the attack on the deceased, when considering the state of mind or intention of the appellant at the time he stomped on the deceased’s head, was inviting them to infer from the appellant’s general disposition to violence and aggression, the specific intent required for murder.  He contends that the directions given by the trial judge that the jury was not to rely upon this evidence as a basis for reasoning that the appellant was therefore a bad person, did not remove the risk of impermissible general propensity reasoning because the specific directions given as to the use the jury could make of the evidence and the use sought by the prosecution left open that mode of reasoning.  Further, the jury was not directed that if they were to rely upon the evidence of these acts to prove the specific intent for murder, they were required to exclude the reasonable hypothesis that the acts were those of an intoxicated man acting out, without intending to follow through, the threats or escalate any acts of violence to a murderous intent.  The general acts of aggression were of a different nature to the unlawful assault on the deceased and, accordingly, they could not be probative of a specific intent to murder or cause grievous bodily harm except by way of a general propensity to violence.

22. I do not accept this submission.

23. Section 34P relevantly provides:

    34P—Evidence of discreditable conduct

    (1)     In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

    (a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

    (b)is inadmissible for that purpose (impermissible use); and

    (c)subject to subsection (2), is inadmissible for any other purpose.

    (2)     Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

    (a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

    (b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

    (3)     In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

    …

24. Evidence will have rational probative value when, if accepted, it could rationally affect the assessment by the jury of the probability of the existence of a fact in issue.[37]  The fact in issue in this case was whether the appellant had the specific intent for murder at the time he stomped on the deceased’s head. 

    [37]   Roach v The Queen [2011] HCA 12 at [12], (2011) 242 CLR 610 at 616.

25. The pre and post conduct evidence was relevant to three issues:  first, the degree to which the appellant was affected by intoxication; second, the appellant’s state of mind; and third, whether the prosecution had excluded the partial defences of excessive self-defence and provocation. 

26. To have excluded the evidence of pre and post offence conduct would have left the jury with a false impression.  The jury would have heard evidence only that the appellant, who began drinking alcohol at 10.00 a.m. at his home, was seen by police at around 2.30 p.m. laughing and talking with the deceased.  That impression would not only have been misleading as to his behaviour on the day, it may have raised a doubt as to whether it was reasonably possible that later in the day he could have formed the specific intent for murder in relation to the deceased who otherwise appeared to be his friend. 

27. The jury’s assessment of the strength of the circumstantial evidence relevant to the issue of the existence of the specific intent for murder would have been based on an incomplete understanding of the relevant events.  The jury might have been left with the incorrect impression that the existence of the requisite specific intent was implausible in those circumstances.  It would have left the jury with the impression that the attack came “out of the blue”.  That may have left the jury with a doubt as to whether it was plausible that the appellant had the requisite specific intent at the time he stomped on the head of the deceased.[38]  In Johnson v The Queen,[39] in the context of assessing a complainant’s evidence, the High Court expressly accepted that evidence which explains what might otherwise appear implausible will have probative value outweighing its prejudicial effect.  The Court said:[40]

    In R v M (D) the Court of Appeal of England and Wales affirmed its earlier analysis in R v Hodson.  In each case evidence of the defendant's sexual misconduct at a time when he was presumed to be doli incapax was held to have been rightly admitted on his trial for sexual offences against the same complainant.  Admissibility was governed in each case by s 101(1) of the Criminal Justice Act 2003 (UK), which allows evidence of the accused's bad character to be received if, among other things, it is "important explanatory evidence". Evidence is important explanatory evidence if without it the court or jury would find it impossible or difficult to properly understand other evidence in the case and its value for understanding the case as a whole is substantial. In each case the Court of Appeal considered that evidence of the accused's sexual misconduct as a child was important explanatory evidence in that it would have been artificial to confine the complainant's evidence to events occurring after the defendant turned 14 years. While the statutory regimes differ, the same reasoning informs the assessment of probative value for the purposes of s 34P(2)(a) of a child's acts of sexual misconduct regardless of whether the child bears criminal responsibility for them.

    [Footnotes omitted.]

    [38]   Johnson v The Queen [2018] HCA 48 at [55].

    [39] [2018] HCA 48.

    [40] [2018] HCA 48 at [53].

28. In addition, the evidence was relevant to the appellant’s state of mind in that it was evidence of his capacity to react angrily and violently at will notwithstanding his level of intoxication. His volatility and emotional state on that day were relevant to his state of mind at the relevant time. His behaviour on that day and the effect alcohol had on him could only be evaluated by considering his conduct throughout the day. The prosecution was not alleging that the appellant had a general disposition to anger and violence. On the contrary, the evidence was led to establish the degree of self-control he was able to exercise notwithstanding his intoxication. The evidence was admitted pursuant to s 34P(2)(a). The evidence was admissible on that basis. It was not admitted as propensity evidence pursuant to s 34P(2)(b).

29. There was no danger of the evidence being used as evidence of some general propensity.  The evidence was confined to his conduct on 1 February 2017.  The prosecution case was not that the appellant was a man out of control but, rather, he was evidently able to decide whether to be aggressive or not.  His ability to erupt in anger and then suddenly become calm and polite, indicated a degree of control which was inconsistent with the defence that, by reason of his degree of intoxication, the prosecution could not exclude the reasonable possibility that he lacked the requisite specific intent for murder.

30. The appellant’s reliance upon the analogy formulated by Bray CJ in Heidt is inapposite.  The analogy was used in Heidt in considering whether the evidence was admissible as part of the res gestae, not whether the evidence was admissible as probative of the state of mind of the accused.  In Heidt Bray CJ sought to distinguish the approach taken by the High Court in O’Leary v The King.[41]In O’Leary the accused was convicted of the murder of a fellow employee after a prolonged drinking bout amongst a group of workers including the accused and the deceased.  The majority of the High Court held the evidence was admissible as part of a connected series of events which should be considered as one transaction.  The evidence of his conduct was relevant to whether the accused formed the requisite intention for murder.  Dixon J, as he then was, said that without that evidence the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.[42]

    [41] [1946] HCA 44, (1946) 73 CLR 566.

    [42] [1946] HCA 44, (1946) 73 CLR 566 at 577.

1. In R v Fleming; R v Maher[43] Hinton J considered the application of O’Leary.  His Honour held O’Leary is concerned with a process of deductive reasoning going to the state of mind of an accused.  His Honour said:[44]

   …  It is from an appreciation of the total transaction, defined by an objective common sense appreciation of all the circumstances (including but not limited to factors such as timing, location and identity of victims), that one may then descend to consider the likelihood of a particular participant conducting themselves in a certain way in the course of the transaction and the likelihood that he or she possessed a particular mental state at that time.  In the same way the totality of the transaction permits a true understanding or appreciation of the particular act that forms a component of it.  Intelligibility then is not a matter of what one isolated incident tells the trier of a fact about another incident.  Rather, invoking the O’Leary process of reasoning, intelligibility is the product of a consideration of the whole informing an understanding of a component of that whole.

   [43] [2017] SASCFC 135.

   [44] [2017] SASCFC 135 at [84].

2. In this case the evidence of pre and post offence conduct was admissible as acts comprising a single transaction where the whole transaction informs an understanding of a component of that transaction, namely, the attack on the deceased.  The admission of the evidence was consistent with the process of reasoning articulated in O’Leary.  The evidence of the appellant’s conduct towards others on that day, like the conduct of the appellant towards the other workers in O’Leary, is probative of his state of mind at the time he stomped on the head of the deceased.  In any event, I consider Heidt to be a decision on its own facts which does not stand as authority for any larger principle. 

3. The absence of evidence of pre and post offence conduct also had the real potential to leave the jury unable to be satisfied beyond reasonable doubt that provocation and excessive self-defence had been excluded.  While the appellant’s plea to manslaughter constituted an implied admission which narrowed the issue of causation, the prosecution nonetheless had to rebut excessive self-defence and provocation.  Exclusion of the evidence of pre and post offence conduct would have raised questions as to whether the deceased had done something to the appellant to change his state of mind to a person who would engage in a brutal attack on his friend.  It may have left open excessive self-defence and provocation and the judge would have been required as a matter of law to direct the jury on those possibilities, irrespective of the defence case.  For that reason the probative value of the pre and post offence conduct outweighed its prejudicial effect. 

4. It was also submitted that the prejudicial effect was the risk that the jury might reason that a person who could act violently towards a dog and exhibit the angry aggressive behaviour in evidence on that day, including in particular towards Mrs Martin, may be the sort of person who would form an intention to do grievous bodily harm to another person.  I entertain real doubt that the evidence would have that prejudicial effect, but, in my view the probative value of the evidence outweighed the prejudicial effect of that type of reasoning, assuming for a moment that it would be employed by a jury properly instructed and acting reasonably.

5. There was no miscarriage of justice as a result of the admission of the evidence of the pre and post offence conduct. 

6. I would dismiss Ground 4 and Ground 4B.

   Grounds 4A and 4C:  the judge erred in directing the jury as to the permissible and impermissible use of the acts the subject of Ground 4

7. It is convenient to address Grounds 4A and 4C together. 

8. The appellant submits that the judge was required to give directions as to the permissible and impermissible use of the pre and post offence conduct evidence pursuant to s 34R(1) of the Evidence Act. The appellant submits that the judge erred as a matter of law in directing the jury that the relevance of this evidence in relation to specific intent was:

   On the prosecution case, the aggressive behaviour of Mr Talbot, which occurred shortly after the events in Mentone Road, can be used by you when considering the question of intent and the level of intoxication of Mr Talbot. 

9. And further:

   That is, the evidence of what occurred before and after the events in Mentone Road are directly probative of the facts in issue at Mentone Road.  It is probative of the accused’s state of mind and attitude and his intoxication. 

10. The appellant submits that the judge erred in directing the jury that the evidence could be relied on in this way without first directing the jury as to how the said acts were probative or could permissibly be used in relation to proof of specific intent for murder as compared to general intent for proof of manslaughter. 

11. The appellant further submits that the judge did not direct the jury as to how the law as to specific and general intent applied to the evidence of the pre and post offence conduct.  The judge was required to direct the jury that there were two distinct intentions that had to be proved beyond reasonable doubt.  First was the general intent to do the act involved in the offence.  The second was the specific intent required to prove murder.  Absence such a direction there was a risk that the jury did not appreciate the evidence could not exclude the reasonable possibility that this evidence merely established a general intention to assault or to commit an unlawful or dangerous act, rather than the specific intent to kill or inflict grievous bodily harm. 

12. The appellant further submits that the judge erred in failing to direct the jury as to how his intoxication was relevant to the probative force of the evidence of the pre and post offence conduct for the purposes relied upon by the prosecution.  Finally, the appellant submits that the directions failed to differentiate between the pre and post acts. 

13. I do not accept these submissions.

14. The judge relevantly gave the following directions to the jury:[45]

    The prosecution case is that the behaviour of Mr Talbot outside of those times between 6 and 7.30 is relevant in this case to your assessment of Mr Talbot’s state of mind and level of intoxication at the time of the unlawful assault on Mr Saunders.  Often in cases, ladies and gentlemen, all you would hear is evidence of what occurred at a particular time.  In this case the evidence of Mr Talbot’s behaviour is relevant in that way.

    For example, the threats to kill Mr Perry, which occurred at approximately 6 o’clock.  As you will remember, he sent a text which – on the agreed facts I think it is 6.11 that text is sent – is relevant to Mr Talbot’s state of mind at the time of the assault of Mr Saunders.  It is relevant to his state of intoxication and it goes to his state of aggression.  Again, the fight Mr Talbot had with his son, although you have got to remember that they both engaged in that, and Mr Hall-Philp in the early hours of the afternoon, again is relevant, as Mr Pearce put to you, to the volatility of Mr Talbot’s mood and his state of intoxication. 

    The evidence of Mr Talbot’s behaviour at the dentist earlier in the day is starting to get a rather long way from the events in Mentone Road, but it is certainly relevant to his state of intoxication at various stages during the day. 

    Again, the relevance of Mr Talbot’s actions as he walked up Sinclair Road after the killing of Mr Saunders lies again in his state of intoxication and his aggression.  It is the whole of this alleged course of events here which provides a context in which it is said the unlawful assault at Mentone Road occurred.  It can be said that the whole sequence of events throws light on the act and the intentions of Mr Talbot at the relevant time. 

    …

    So in other words the evidence of what occurred before and after the events at Mentone Road are directly probative of facts in issue that occurred in this incident between 6 and 7.30.  It is probative of Mr Talbot’s state of mind, his attitude and his state of intoxication. 

    However, you must not reason that simply because Mr Talbot did behave badly, that he did threaten people, that he got drunk or intoxicated and he did get aggressive, that he is therefore simply a bad person and must have committed the crime as alleged by the prosecution.  You must not reason like that.  The evidence in this case that I have referred to is only admissible as to his state of intoxication and his state of mind at the time of the unlawful assault on Mr Saunders.  It goes to no other issue.  You must not reason that simply because he behaved badly before and after the relevant time, between 6 and 7.30, that he is the type of person who would commit murder.  The evidence, as I have said, is only admissible for the purposes of his state of mind and intoxication at the relevant time and that is the only use you can make of that evidence.

    [45]   AB 111-112.

15. Later the judge directed the jury in the following terms:[46]

    I remind you of the relevance of his behaviour towards Mr Perry, his son and Mr Hall‑Philp, to Mr Bell and Mr and Mrs Martin, and the relevance lies in the state of his intoxication and his aggression.  It is the whole of the alleged course of events here which provides a context in which it is said that the unlawful assault at Mentone Road occurred.  It is said that the whole sequence of events throws light on the acts and intentions of Mr Talbot at the relevant time.  That is the evidence of what occurred before and after the events at Mentone Road are directly probative of the facts in issue at Mentone Road.  It is probative of the accused’s state of mind and attitude and his state of intoxication. 

    I again warn you you must not reason that simply because Mr Talbot behaved badly, because he did threaten people, he got intoxicated and he did get aggressive, that he is simply therefore a bad person and he must have committed the crime alleged by the prosecution.  You must not reason like that. 

    The evidence that I have referred to is admissible only as to his state of intoxication and his state of mind at the time he committed the unlawful assault on Mr Saunders.  It goes to no other issue and you must not reason that because he behaved  badly, both before and after the relevant time, that he is the type of person who would commit murder.

    [46]   AB 160.

16. Subsequently, the judge gave the following direction:[47]

    [47]   AB 164-166.

    The prosecution also rely on the evidence of the aggression of Mr Talbot both before 6 o’clock and then after he left Mentone Road.  There is evidence of what he did in the morning at Victor Harbor, and there I am really talking about his behaviour at the dentist;  but you might think that evidence is more related to the question of his level of intoxication because whilst he was aggressive in a sense at the dentist it is a considerable time from the events at Mentone Road.

    The prosecution rely on the fight with his son at Heysen Parade. 

    …

    It is unknown who actually started the fight or provoked it but all that can be inferred is that Mr Talbot at some stage took part in the fight and he was injured and the prosecution point to the assault on Mr Hall-Philp, someone who was not involved in the fight, as evidence of the aggressive state of mind of the accused at that time.

    Perhaps more important is the evidence of Mr Perry as to the state of Mr Talbot.  That is more proximate to the time of the offending.  It was around 6 o’clock.  Mr Perry told you that the accused was extremely verbally aggressive and threatening to him, Mr Perry. 

    I have already dealt with Mr Perry’s evidence in relation to the question of intoxication.  But the question of his aggression and the question of his intoxication can both be used by you as a piece of evidence when considering the question of the intent of Mr Talbot when he unlawfully assaulted Mr Saunders. 

    Mr Talbot left the premises at approximately 7.30 p.m. with Mr Crouch.  Mr Bell, you remember, gave evidence of the accused shouting at his dog, threatening to kill him.  Mr Talbot kicked the gate so vigorously, that he sheared off one of the mounting bolts on top of the gate.  Mr Talbot was aggressive towards Mr Bell.  Likewise he was aggressive towards Mr and Mr Martin. 

    The contact that he had with Ms Sweet seems to have been friendly but on the prosecution case, Mr Pearce pointed out to you that Mr Talbot was capable of walking up the roadway, being friendly and was not obviously staggering too much. 

    So on the prosecution case, the aggressive behaviour by Mr Talbot, which occurred shortly after the events in Mentone Road, can be used by you when considering the question of the intent and the level of intoxication of Mr Talbot. 

17. Section 34R(1) provides that if evidence is admitted pursuant to s 34, the judge must identify and explain the purpose for which the evidence may, and may not, be used.

18. The directions required by s 34R will be dictated by the circumstances of the case and the real issues in the trial.  In Perara-Cathcart v The Queen[48] the plurality put the proposition as follows:[49]

    The question is whether the trial judge's directions were sufficient to identify the permissible and impermissible uses of the appellant's admission that the cannabis found at his house belonged to him. Whether those directions conform to the requirements of s 34R(1) can only be determined having regard to the real issues in the case. In Huynh v The Queen, French CJ, Crennan, Kiefel, Bell and Gageler JJ reiterated that the general responsibility of the trial judge to direct the jury on matters of law is as stated in Alford v Magee; that is, the trial judge is obliged:

    "to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues."

    [Footnotes omitted.]

    [48] [2017] HCA 9, (2017) 260 CLR 595.

    [49] [2017] HCA 9 at [53], (2017) 260 CLR 595 at 617.

19. Whether a direction is sufficient to satisfy the requirements of s 34R(1) must be determined in the light of this fundamental responsibility of the trial judge. It is relevant in this context that no further directions were sought by trial counsel.

20. Contrary to the submission of the appellant there was no need for the judge to give an express direction differentiating between general and specific intent.  The judge’s directions made clear to the jury that the issue at trial was whether the prosecution had proved beyond reasonable doubt that at the time the appellant stomped on the head of the deceased he intended to kill him or cause him grievous bodily harm.[50] 

    [50]   AB 125-134.

21. The directions were sufficiently detailed.  The requisite need for detail will depend on the potential risk that the evidence will be used for an impermissible purpose and the complexity of the permissible purpose.  It was enough to identify and summarise the relevant evidence, to explain the general principles and to identify, in a general way, the manner in which the evidence might and might not be used.[51]  It was for the jury to determine whether the discreditable conduct evidence could assist them in their consideration of the issues upon which the verdict depended.[52] 

    [51] [2017] SASFC 92 at [40].

    [52]   R v Taheri [2017] SASFC 92 at [40].

22. In R v Taheri[53] Vanstone J, with whom Parker and Lovell JJ agreed, said:[54]

    The purpose of s 34R and of the common law obligation which it enshrines is to explain that of which the jury would be otherwise ignorant:  the strict approach of the criminal law to the admission, use and misuse of evidence of discreditable conduct on occasions other than those charged.  It is not to instruct the jury in logic. 

    [53] [2017] SASCFC 92.

    [54] [2017] SASCFC 92 at [40].

23. The directions as to the relevance of the evidence of the appellant’s state of mind included references to the volatility of his mood, his aggression and that he could turn this on and off.  Those directions assisted the jury to rebut any concerns they may have had in finding the requisite specific intent proved, given evidence of intoxication and the appellant’s friendliness towards the deceased earlier in the afternoon.  As explained in Taheri no further directions needed to be given explaining how the evidence might be used.[55]

    [55] [2017] SASCFC 92 at [40].

24. The direction that the evidence was relevant to the appellant’s intoxication and state of mind at the time of the offence was sufficient.  The risk of misuse cannot be assessed without reference to the way the prosecution conducted the trial.  Section 34R does not impose an obligation on a judge to direct the jury as to every purpose for which the evidence may not be used, however fanciful and however remote from the issues at the trial.  Such a submission is the antithesis of the obligation imposed on the trial judge when summing up to identify the real issues in the case and to instruct the jury in so much of the law as is necessary to decide those issues.

25. Further, when considering the potential for misuse or whether further directions of the kind for which the appellant now contends on appeal should have been given, it is important to remember that there was no dispute that the appellant caused the deceased’s death.  This is not a situation where further directions were required to avoid a process of reasoning that the appellant’s aggression and volatility was in some way relevant to whether he in fact inflicted the fatal injury. 

26. The possibility of the jury engaging in a particular reasoning process will be informed by whether there was an express or implied invitation to do so and whether such a risk was apparent in the context of the trial to counsel or the judge.  I do not consider such a risk existed.

27. The directions of the trial judge satisfy the requirements of s 34R(1). They were otherwise adequate. The appropriate warnings were given.

28. There was no error of law.  There was no miscarriage of justice.  I would dismiss Grounds 4A and 4C.

    Ground 5:  the verdict is unreasonable

29. The appellant submits that in view of the evidence of Dr Gilbert, coupled with the evidence of the appellant’s intoxication, it was not open to the jury to exclude the reasonable possibility that the appellant did not form the requisite specific intent for murder.  In support of this ground the appellant relies on the evidence of the estimate of his blood alcohol concentration of approximately 0.22 at the time of the attack on the deceased;  the evidence that the death resulted from a sudden drunken quarrel in the absence of any evident reason for the appellant to want to inflict grievous bodily harm on the deceased;  and the evidence of Dr Gilbert that the fatal injury could have been caused by a single stomp to the deceased’s head while he was lying on a hard surface. 

30. The appellant submits that if that factual matrix could not be excluded, the reasonable possibility that while heavily intoxicated the appellant did not turn his mind to the consequence of his actions and proceeded to inflict the fatal injury, also could not be excluded.

31. The appellant submits that it follows that the evidence is such as not to exclude the reasonable possibility that he unlawfully assaulted the deceased without the specific intent to kill or cause grievous bodily harm.  There must be a sense of unease about the verdict of guilty to murder and that doubt is one that should have been entertained by the jury. 

32. I do not accept this submission.

33. Section 353(1) of the CLCA provides that the Court of Criminal Appeal will only allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

34. The principles applicable to the application of s 353(1) are stated by the plurality in M v The Queen:[56] 

    [56] [1994] HCA 63 at [6]-[7], (1994) 181 CLR 487 at 492.

    Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.  Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”.  In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict.  Questions of law are separately dealt with by s 6(1).  The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.  But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”.  A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.  In speaking of the Criminal Appeal Act in Hargan v. The King Isaacs J. said:

    “If [the appellant] can show a miscarriage of justice, that is sufficient.  That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.”

    And as the Court observed in David and Cody v. The King, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

    “not only cases where there is affirmative reason to support that the appellant is incorrect, but also cases of quite another description.  For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.

    [Footnotes omitted.]

1. In Libke v The Queen[57] Hayne J, with whom Gleeson CJ and Heydon J agreed, said:[58]

   [T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained doubt at the appellant’s guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

   [Citations omitted.]

   [57] [2007] HCA 30, (2007) 230 CLR 559.

   [58] [2007] HCA 30 at [113], (2007) 230 CLR 559 at 596.

2. The task before an appellate court is to make an independent assessment of the evidence both as to its sufficiency and its quality so as to determine whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand.[59]  This is a question of fact.[60]

   [59]   SKA v The Queen [2011] HCA 13 at [14], (2011) 243 CLR 400 at 406.

   [60]   M v The Queen [1994] HCA 63 at [6], (1994) 181 CLR 487 at 492.

3. In Miller v The Queen[61] the High Court, in the context of a ground of appeal that the verdict was unreasonable, where the appellant’s state of mind was in issue, held that an appellate court must review the evidence, address its asserted deficiencies in its capacity to establish the fact in issue, and assess the significance to its conclusion of the evidence of the appellant’s intoxication.[62] 

   [61] [2016] HCA 30, (2016) 259 CLR 380.

   [62] [2016] HCA 30 at [79]-[82], (2016) 259 CLR 380 at 410-411.

4. In this appeal, there is no proper basis to consider that the jury must have had a doubt that the appellant intended to at least inflict grievous bodily harm when he stomped on the head of the deceased.  I reach this conclusion as a result of an independent assessment of the circumstantial evidence relevant to proof of the appellant’s intention. 

5. First, the evidence of the deceased’s injuries provide a sufficient basis to be satisfied beyond reasonable doubt of an intention to inflict grievous bodily harm.  The evidence disclosed that in the north-west corner of the kitchen at 90 Mentone Road the deceased had suffered an injury which left him prostrate on the kitchen floor.  The injury resulted in the formation of a large pool of blood on the floor.  The bloodstain mark to the fridge door indicated a hard object was swung towards the deceased after a blood deposition event, with enough force to remove the paint from the fridge and scratch the underlying metal.[63]  The angle of the mark indicated the object that made it was swung in the direction of the deceased’s final resting position.[64]  Spatter stains on the rear door, a cardboard box and the fridge indicated that the pattern originated from the location of the deceased’s head in close proximity to his final resting position.[65]  Blood samples taken from the medial side of the deceased’s boot, the sole, the vamp and the spatter on the lateral side of the boot were all analysed and found to provide extremely strong support for the deceased being a contributor.[66]  At least two of the spatter stains on the side and heel had little associated flow, which is unusual for spatter stains.  Once deposited, the droplets must have moved quickly so as to cause a flow.[67]  This is consistent with repeated kicking or stomping.  The appellant’s left boot had transfer staining on the toe and vamp which had clots and tissue-like debris among it.[68]  There were up to 50 spatter stains on the medial side of the boot, exhibited in multiple directionalities indicating more than one spatter event.[69]  There was a flattened human scalp hair embedded into some tissue-like debris adhering to the toe, which had been subject to some force in order to flatten it.[70] 

   [63]   Second trial T 531, Exhibit P35 photographs 18-19.

   [64]   Second trial T 543. 

   [65]   Second trial T 512-515, 524-525, 527, 530, 531, 542, Exhibit P35 photographs 7-19.

   [66]   Second trial T 408-409, Exhibit P31 (samples 205-33A, 205-33B, 205.33C, 205.33D).

   [67]   Second trial T 481.

   [68]   Second trial T484, Exhibit P31.

   [69]   Second trial T 482-483.

   [70]   Second trial T483, Exhibit P31.

6. The skull fracture ran across the base of the skull, behind each eye socket.  Coming off that fracture was another fracture downwards and to the left.[71]  The evidence was that a great deal of force was required to cause such a fracture.  It was equivalent to what might be seen in a motor vehicle accident.[72]  Dr Gilbert gave evidence that the most likely cause of the injuries was side-to-side compression, possibly from very forceful stomping[73] rather than punching.  The fracture was consistent with the left‑hand side of the head lying against a solid object and the right side being stomped.[74]  The fracture was consistent with the deceased lying motionless on the floor at the time his head was stomped.  Dr Gilbert accepted the fracture could have been caused by one very forceful blow, but did not exclude that it could have resulted from more than one stomp.[75]  He concluded that the deceased suffered at least six blows to the head, including the stomp or stomping which caused the skull fractures.[76]  While he favoured the hypothesis that one application caused the skull fracture, he would not exclude more than one blow as being responsible. 

   [71]   Second trial T 228-230, Exhibit P12 pages 17 and 18 of 18.

   [72]   Second trial T 228-230.

   [73]   Second trial T230.

   [74]   Second trial T230.

   [75]   Second trial T230.

   [76]   Second trial T249.

7. While the remaining injuries were said to be relatively minor this characterisation is to be understood in comparison to the fatal injury.[77]  The fact the other injuries were not life threatening does not detract from the relevance of their combined effect to inform the intention of the appellant in inflicting them.  The number of injuries and the fact that they were concentrated on the deceased’s head informs the intention in inflicting the injuries.  Similarly, evidence that blood located on the appellant’s boots was clotted[78] is consistent with the prosecution case that the appellant kicked the deceased after the blood had time to clot on the deceased.  Dr Silenieks gave evidence that the deceased’s clotted blood found on the appellant’s boots had clotted before it was deposited on his boots.[79]  It follows that the blood had clotted on the deceased before the appellant kicked him.  This suggests that the deceased had spent some time on the floor bleeding, which enabled the blood to clot.  This evidences the duration of the attack on the deceased.  The characterisation of the attack as a sudden drunken quarrel does not convey accurately the duration and nature of the appellant’s attack on the deceased. 

   [77]   Second trial T 248.

   [78]   Second trial T 484.

   [79]   Second trial T 484.

8. Second, there is sufficient evidence that the appellant had a motive to attack the deceased, namely, jealousy relating to the deceased’s involvement with Ms Bloomfield.  Statements made by the appellant later that night, heard by Mr Hall-Philp and Mr Kropinyeri, provide ample support for the existence of motive. 

9. Third, the evidence of the appellant’s pre and post offence conduct provides a cogent evidentiary basis to dispel any doubt that his level of intoxication was such that a jury could not be satisfied beyond reasonable doubt that the appellant intended to inflict grievous bodily harm upon the deceased.  The appellant’s blood alcohol level is not to be considered in a vacuum.   When considering the evidence of his intoxication for the purposes of determining whether a jury must have had a doubt whether the appellant had the requisite specific intent at the time he inflicted the fatal injury, the evidence is to be considered in the light of the nature of the attack, the existence of a motive, the appellant’s ability during the day to make decisions and act upon them and statements he made in the nature of admissions in the hours immediately following the events at Mentone Road.  Statements the appellant made in the hearing of Mr Hall-Philp and Mr Kropinyeri evidenced an awareness on his part of the nature of the injury he inflicted and his intention in doing so.  The appellant’s intention in stomping on the deceased’s head while he was vulnerable, motionless, and unable to defend himself is more clearly evidenced than the situation where a blow is inflicted in the course of a struggle when a person’s intention might be uncertain.  The appellant’s reference in the conversation with Mr Kropinyeri in the carport at 46 Heysen Parade, that he had “this bloke on the ground” and “he was trying to get blood out of his – stomp blood out of his ears”, together with the evidence of Mr Hall-Philp overhearing the appellant later that night saying he “stomped on some cunt’s head” and that he “deserved it” was evidence from which the jury could infer the existence of the requisite specific intent earlier that evening.

10. I am satisfied on the evidence that it was open to the jury to find on the circumstantial evidence that at the time the appellant stomped on the deceased’s head he did so intending to inflict grievous bodily harm on the deceased.  The verdict of guilty was reasonably open.  I do not consider that the jury must have had a reasonable doubt.

11. I would dismiss Ground 5. 

    Conclusion

12. I would dismiss the appeal.

13. PARKER J:          I would dismiss the appeal.  I agree with the reasons of Stanley J.