THORP-MILLARD v The Queen - [2021] SASCA 144

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
THORP-MILLARD v THE QUEEN
[2021] SASCA 144
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
9 December 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - DISCHARGING FIREARMS
It was alleged that the appellant discharged a firearm outside a residence on two separate occasions over two consecutive days. The appellant was charged with the offence of discharge a firearm to injure, annoy or frighten, contrary to s 32AA(1) of the Criminal Law Consolidation Act 1935 ('CLCA') in respect of the first incident (Count 1). In respect of the second incident, the appellant was charged with the offences of aggravated endangering life, contrary to s 29(1) of the CLCA, or and in the alternative, discharge a firearm to injure, annoy or frighten, contrary to s 32AA(1) of the CLCA (Counts 2 and 3).
Following a trial by jury, the appellant was found guilty of Count 1 and acquitted of Counts 2 and 3. At trial, the central issue in dispute was whether the prosecution had proved that the appellant discharged the firearm on each occasion; that is, whether the identity of the offender had been proved to be the appellant.
The appellant appeals against his conviction on the single ground that the verdict of the jury in respect of Count 1 is unreasonable and cannot be supported having regard to the evidence. The appellant contends that there was insufficient evidence to support a conviction on Count 1 and the verdicts are factually or logically inconsistent and incapable of rational explanation on the evidence.
Held, per the Court, dismissing the appeal:
1. Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of Count 1. There was a relatively strong circumstantial case that the appellant was the offender who discharged the firearm during the first incident.
2. There is a clear and sufficient basis for reconciling the verdicts of guilty on Count 1 and not guilty on Count 3.
Criminal Law Consolidation Act 1935 (SA) s 29 & 32AA; Criminal Procedure Act 1921 (SA) s 158, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591; TK v The Queen (2009) 74 NSWLR 299, considered.

THORP-MILLARD v THE QUEEN
[2021] SASCA 144
Court of Appeal - Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

It was alleged that the appellant discharged a firearm outside a residence at 5 Olinda Court, Mount Gambier on two separate occasions over two consecutive days. The first occasion occurred in the early hours of the morning; the second occasion occurred mid-morning when the occupants of the residence were present. The appellant was charged with the offence of discharge a firearm to injure, annoy or frighten, contrary to s 32AA(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’) in respect of the first incident (Count 1). In respect of the second incident, the appellant was charged with the offences of aggravated endangering life, contrary to s 29(1) of the CLCA, and in the alternative, discharge a firearm to injure, annoy or frighten, contrary to s 32AA(1) of the CLCA (Counts 2 and 3).
Following a trial by jury, the appellant was found guilty of Count 1 and acquitted of Counts 2 and 3. At trial, the central issue in dispute was whether the prosecution had proved that the appellant discharged the firearm on each occasion; that is, whether the identity of the offender had been proved to be the appellant.
The appellant appeals against his conviction on the single ground that the verdict of the jury in respect of Count 1 is unreasonable and cannot be supported having regard to the evidence. The appellant contends that there was insufficient evidence to support a conviction on Count 1 and the verdicts are factually or logically inconsistent and incapable of rational explanation on the evidence.
The ground of appeal (as amended at the appeal hearing) is particularised as follows:
The verdict of the jury in respect of count one was unreasonable and cannot be supported having regard to the evidence
18.1. The jury acquitted the appellant in respect of count three on the information.
18.2.Satisfaction of guilt beyond reasonable doubt in respect of count one relied upon the jury accepting the identification of the appellant as the offender in respect of counts two and three.
18.3.In light of the jury’s verdict of not guilty in respect of count three it is apparent that the jury were not so satisfied.
18.4.As such, the verdict of the jury in respect of count one is inconsistent with the verdict on count three and is incapable of proper or rational explanation on the evidence.
Background
The incident the subject of Count 1 occurred at about 5.30am on Sunday, 23 February 2020. The incident the subject of Counts 2 and 3 occurred at about 11.30am the following day, Monday, 24 February 2020. Both incidents occurred outside the home of Mr Zachary Sailor (‘Mr Sailor’), where he lived with his partner, Ms Namirra Latham, and their children. There were also two other young male relatives present at the home at the relevant time: Mr Matthew Sailor, the cousin of Mr Sailor, and Mr Jeb Latham, the brother of Ms Latham.
The appellant was an acquaintance of Mr Sailor and was known to Ms Latham. There was evidence of animosity between the appellant and Mr Sailor leading up to the offending. Evidence was led of two uncharged incidents evincing that animosity. The first occurred on a night after the appellant and Mr Sailor were arguing over Facebook Messenger. Ms Latham drove an intoxicated Mr Sailor to Pressey Street, where the appellant’s mother lived. Mr Sailor confronted the appellant whilst Ms Latham remained in the vehicle. Ms Latham said she heard arguing and what she thought were five to six gunshots.
The second uncharged incident occurred the evening before the incident the subject of Count 1. On that evening, the appellant and three or four other males allegedly travelled in a red Holden Commodore to Mr Sailor’s home. The males were in possession of metal poles and baseball bats. According to Ms Latham, the male in the passenger’s seat was holding a firearm or ‘pipe gun’ which he was pointing out of the window.[1] All of the males were wearing masks, except for the appellant. An argument ensued between Mr Sailor and the males who had travelled to his home. The appellant and the other males left a short time later.
[1] Trial Transcript at 52.
At trial, Ms Latham gave evidence as to the uncharged incidents and the offending the subject of Counts 2 and 3. Mr Sailor and the other males present at his home did not give evidence. On the prosecution case, there was evidence from neighbours as to their observations of the charged incidents. There was also evidence from an investigating police officer as to CCTV footage seized from the appellant’s mother’s home at a time proximate to the charged offences.
The appellant did not give or adduce evidence.
Count 1 – 23 February 2020
The first shooting incident involved a person driving past Mr Sailor’s home and firing several shots causing damage to Ms Latham’s vehicle which was parked in the driveway. A bullet was retrieved from the rear of the vehicle and a 9 mm casing was located after the shooting.
Ms Latham gave evidence that on Sunday, 23 February 2020 at approximately 5am she was at home asleep when she was awoken by five or six gunshots. She described seeing a car in the driveway behind her car. When asked about the model of the car, Ms Latham said, ‘It was a Holden, it was the same shape, you could see it clearly, but not very clear ‘cos it was dark and it was really quick’.[2] In describing the vehicle as the ‘same shape’, Ms Latham was referring to the vehicle involved in the uncharged incident on the previous evening when the appellant and the other males had allegedly travelled armed to her home. On 23 February 2020, Ms Latham could not see whether the windows of the car were up or down, nor could she see into the vehicle. Ms Latham said that she could see ‘shadows’, but she didn’t recognise anyone inside the vehicle.[3]
[2] Trial Transcript at 57.
[3] Trial Transcript at 59.
A 9 mm casing was located after the shooting.
Neighbours also gave evidence as to the first incident. A Ms Devereaux, who lived directly across the street, said that between approximately 5am and 5.30am she went to the bathroom and heard two or three gunshots. From her bedroom window, she saw a red car parked opposite Mr Sailor’s house. Ms Devereaux could not see anyone inside the vehicle, nor could she recall any distinctive features of the vehicle. Her evidence was relevant as to the timing of the first incident when considered in conjunction with the CCTV footage.
Ms Doman and Mr Ploenges lived together in a home next door to Mr Sailor. Ms Doman said that at about 4.15am or 5.15am she heard a noise which she described as ‘pop, pop, pop’ and said sounded like a starting pistol.[4] She said she went outside and saw a police car coming up the cul-de-sac before she returned inside. Mr Ploenges said he heard some shooting at about 1.30am or 2am. He said he went to the kitchen window to look out to the street but saw nothing.
[4] Trial Transcript at 163-4.
There was also CCTV footage of the backyard of 12 Pressey Street, Mount Gambier (Trial Exhibit P7) — premises belonging to Ms Rhonda Thorp, the appellant’s mother. The CCTV footage shows at 5.18am a male (said to be the appellant) walking towards a Holden Commodore and getting into the driver’s side of the vehicle. The male is wearing a dark hooded jumper. He is the only person in the vehicle when it leaves the premises a short time later. At about 5.34am the vehicle returns to 12 Pressey Street. At that time, the driver’s side window is down. The driver (who appears to be the same man as was driving the vehicle when it left 20 minutes earlier) is the only person seen to leave the vehicle.
The jury was asked to compare the appearance of the male driver depicted in the CCTV footage with an arrest photograph of the appellant (Trial Exhibit P6) as well as his appearance in the dock. The driver was alleged to closely resemble the appellant.
The CCTV footage is relevant and highly probative on the prosecution case because a male (resembling the appellant) leaves alone in the Holden Commodore and later returns alone in the vehicle at a time proximate to the first shooting incident. At trial, defence counsel relied on Ms Latham’s evidence that she saw ‘shadows’ in the vehicle from which the firearm was discharged to submit that there was more than one person in the vehicle at the time of the first incident.
Counts 2 and 3 – 24 February 2020
The second shooting incident involved a person driving past Mr Sailor’s home at about 11.30am on the following day and discharging a firearm. Ms Latham gave evidence that she heard Mr Sailor say something which caused her to go into her front yard. She gave evidence that between 10am and 11am, but closer to 11am, she saw the appellant driving ‘his’ red Holden Commodore along her street until it was by her letterbox.[5] She said the driver’s window was wound down and she saw the appellant firing a small black gun. She said that she heard five to six gunshots during this incident.
[5] Trial Transcript at 71.
Ms Latham said that Mr Sailor and the other males present at her home entered the front yard and ran towards the vehicle while the appellant continued to point and shoot at them. She said that Mr Sailor and the other males started throwing empty alcohol bottles at the appellant’s car, shattering a window. She said that the appellant was shooting towards Mr Sailor and that she saw Matthew Sailor ‘jump when one of the bullets nearly hit his leg’,[6] which left a mark on his leg.
[6] Trial Transcript at 76.
She said the appellant continued shooting towards the premises as he was driving off.
When asked about the similarities between the vehicle allegedly driven by the appellant on this occasion and the vehicle involved in the shooting incident on the previous morning, Ms Latham said both vehicles had a ‘spoiler’ on the boot, SS signs on the side of the car, and made the same noise.[7] She said the vehicle involved in the second incident was a VY or VZ model of an SS Holden Commodore.
[7] Trial Transcript at 72.
Again, some of the neighbours gave evidence as to their observations that morning. Relevantly, Mr Ploenges said that at about 11.30am he saw a red vehicle parked facing the wrong way on the cul-de-sac right in the gutter or on the gutter close to Mr Sailor’s house. He said he saw an arm come out the driver’s side window of the vehicle and fire three shots before taking off. Mr Ploenges said he had the impression someone else was in the vehicle, but he could not say for certain. He described the driver as having ‘dark, scraggly hair’ and a ‘dark-ish complexion’.[8] Mr Ploenges said that he had an unobscured view of the front half of the driver’s side of the vehicle.
[8] Trial Transcript at 190.
Another resident, Mr Vears, resides in a house across the street from Mr Sailor. He said that he was taking out his bins (about an hour or so before he routinely has lunch at 12pm) when he saw a red car coming towards him. He said he saw a couple of persons wearing ‘hoodies’ inside the vehicle.[9] He said he heard gun shots before two of the males present at the premises started throwing bottles at the vehicle. He said the red car then drove off. Mr Vears said the model of the red car was either an SS or a Clubsport. He said that he only saw two people in the car and that they had hoods over their head. Mr Vears said that a person fired the gun out of the right-hand side of the vehicle, but he could not recall if it was the driver or back passenger who fired the gun. However, he agreed that in a police statement made on 20 March 2020, he said that he was ‘pretty sure it was the passenger who fired the gun because I saw an arm come up inside the car’.[10] Mr Vears agreed that his memory would have been more accurate at the time of providing his police statement than when giving evidence. He said his memory as to the events was now ‘hazy’.[11]
[9] Trial Transcript at 225.
[10] Trial Transcript at 232.
[11] Trial Transcript at 232.
In the CCTV footage taken on 24 February 2020 at 10.56am, a female wearing sunglasses and black clothing can be seen entering the rear passenger side of the vehicle. At 11am, a male, allegedly the appellant (who appears to be the same male depicted in the CCTV footage driving the vehicle on the previous day), gets into the driver’s seat. The appellant’s mother opens the gate, through which the vehicle drives, then closes the gate. The appellant’s mother cannot be seen re‑entering the rear yard in the footage, suggesting she too left in the vehicle.
At 11.39am, the red Holden Commodore returns to 12 Pressey Street. The driver’s side front window is wound down. The same male, earlier seen driving the vehicle, exits the driver’s seat of the vehicle wearing a black hooded jumper. A woman wearing a black hooded jumper and sunglasses exits the rear passenger seat of the vehicle. The appellant’s mother exits the front passenger seat. A total of three people (one male and two females) can be seen leaving the vehicle in the footage.
The vehicle appears to have damage to the windscreen.
At about 11.55am that same day police attended at Mr Sailor’s home. By then, the alleged shooting must have concluded.
As to the police investigation generally, there was no firearm seized from any premises associated with the appellant. The appellant was arrested at 12 Pressey Street at about 3.50pm on 25 February 2020.
Issues at trial
At trial, there was no dispute that someone discharged a firearm towards Mr Sailor’s home on 23 February 2020, and again on 24 February 2020. The contested issue at trial was whether the prosecution had proved that the appellant was the person who discharged the firearm on each occasion. The other legal elements of the offence of discharging a firearm (Counts 1 and 3) were not in dispute. The prosecution did not allege a joint enterprise as a basis for liability on any count. In respect of Count 1, no one identified the appellant as the person in the vehicle who discharged the firearm. The prosecution relied on circumstantial evidence to prove the identity of the offender; that is, that the appellant was the person who discharged the firearm. However, in respect of Counts 2 and 3, the prosecution relied on Ms Latham’s direct evidence identifying the appellant as the person who discharged the firearm, as supported by other circumstantial evidence.
More specifically, in proving that the appellant was the offender, and the person who discharged the firearm for Count 1, the prosecution relied on the following evidence:
1.The offender drove a red vehicle and the appellant drove a red Holden Commodore;
2.The CCTV footage showed only one person leaving and returning in the vehicle to the appellant’s mother’s premises at a time proximate to the commission of Count 1 (that timing being based on when the neighbours heard gunshots). The appearance of the driver closely resembled the appellant, as compared with his arrest photograph and appearance in the dock. The footage is also taken at the appellant’s mother’s home, where he was arrested two days later;
3. The appellant had a motive to commit the offence;
4. There was a 9 mm casing located after the shooting; and
5.Evidence that the appellant had access to, and possession of, a firearm which left a 9 mm casing when fired on 24 February 2020; that is, the evidence of Ms Latham identifying the appellant as having discharged the firearm on 24 February 2020, from which it can be inferred that he would have had access to the same firearm which also left a 9 mm casing when fired on 23 February 2020.
The evidence of the appellant’s identity as the person who discharged the firearm during the incident the subject of Counts 2 and 3 (as proved in part by Ms Latham’s direct evidence as to identification) was relied on by the prosecution as an integral part of the circumstantial case in proving the appellant’s guilt on

Count 1.
At trial, defence counsel in her closing address submitted that if the jury were not satisfied that the appellant had discharged the firearm on the second occasion, the appellant should also be acquitted of Count 1, as the evidence establishing the appellant as the person who discharged the firearm on the first occasion was insufficient (without the direct evidence of Ms Latham that the appellant was the person who discharged the firearm on the second occasion) to prove Count 1.
As to proving the identity of the offender for Counts 2 and 3, the prosecution relied on the direct evidence of Ms Latham identifying the appellant as the person who discharged the firearm and the following pieces of circumstantial evidence in support of the prosecution case:
1.The offender used a red car and the appellant drove a red Holden Commodore;
2.The CCTV footage disclosed a male and at least one other person leaving the appellant’s mother’s premises at Pressey Street and returning with two other persons at a time proximate to Counts 2 and 3 (as based on the neighbours’ observations);
3.The appearance of the driver closely resembled the appellant, as compared with his arrest photograph and appearance in the dock. The footage is also taken at the home of the appellant’s mother, and there is no dispute that one of the women in the footage is the appellant’s mother. The appellant was arrested at his mother’s premises the following day;
4.The appellant was wearing a hooded top when he left and returned to the premises and the offender was described as wearing a hooded top;
5.The CCTV footage said to show damage to the front windscreen of the appellant’s vehicle upon its return to Pressey Street is consistent with the evidence that bottles were thrown towards and hit the offender’s vehicle causing damage to the windscreen;
6. The appellant had a motive to commit the offence;
7.The evidence of Mr Ploenges and Ms Latham that it was the driver of the vehicle who discharged the firearm; and
8.The evidence that a person using a similar vehicle on the previous day had access to a firearm which also left a 9 mm casing when fired.

At trial, defence counsel submitted that Ms Latham was not a credible or reliable witness and her evidence identifying the appellant as the person who discharged the firearm during the second incident could not be accepted beyond reasonable doubt. Thus, the jury could not convict the appellant of any count. Defence counsel emphasised Ms Latham’s prior inconsistent statements; that her evidence was inconsistent with some aspects of the neighbours’ evidence as to their observations and the timing of events; and Ms Latham’s motive to lie because of her (and Mr Sailor’s) animus towards the appellant and his family.
Alternatively, defence counsel submitted that Ms Latham may have simply assumed that the appellant was the driver of the vehicle during the second incident and assumed that he discharged the firearm because of her animosity towards him. Further, even if the appellant was the driver, another person may well have discharged the firearm.
Defence counsel also emphasised Mr Ploenges’ evidence that his impression was that the driver during the second incident had a dark complexion and dark, scraggly hair (unlike the appellant) and the evidence of Mr Vears, who was unable to say whether it was the driver or the passenger who discharged the firearm. At trial, defence counsel also argued that there were others who had a motive to commit the offences.
Summing up
No complaint has been made about the trial Judge’s summing up.
Relevantly to this appeal, the trial Judge gave a ‘separate consideration direction’ in the following terms:[12]
Firstly, you heard the evidence as to what occurred on 23 February and what occurred on 24 February in the same trial because the evidence of what happened on 24 February is relevant on the prosecution case to what happened on 23 February and vice versa.
It does not however follow that where an accused is charged with more than one count, that simply because you may be satisfied of guilt of one offence that the accused is necessarily guilty of any other offence charged. The charges do not stand or fall together.
If you accept Ms Latham’s evidence of what occurred on 24 February that evidence will be relevant to whether the accused had access to or possession of a firearm on 23 February. If the accused had a firearm on 24 February you can infer he also had access to or possession of that firearm only one day earlier on 23 February. His access to or possession of a firearm in the relevant time frame is relevant to whether he was the person who could have discharged the firearm on 23 February. The prosecution also led evidence that a 9 mm casing was located after the shooting on the 23rd and that a 9 mm casing was located on the road after the 24 February shooting. This may be evidence of a link between the two incidents. How strong a link it is, is a matter for you. There was no other evidence led on that subject.
Further, you can use the evidence of what happened on 24 February as evidence of the nature and extent of the accused’s animosity towards Mr Sailor. That level of animosity is relevant to whether the accused had a motive to discharge a firearm intending to injure, frighten or annoy another person on 23 February.
These are the only ways you can use the evidence of each incident as regards each other.
You must consider the evidence of the issues relating to each count separately when you come to determine your verdict on each count. There are obviously different considerations in relation to each count. For example, even if you are satisfied of the identification of him as being present and discharging a firearm on 24 February, you must still consider whether you are satisfied the evidence proves he was also present on 23 February and that even if he was present, was he the person who discharged the firearm. This just highlights why you must consider the evidence related to each count separately when you come to determine your verdict on each count.
Therefore, if you find him guilty of one count you cannot reason he must be guilty of the other count. You also cannot reason ‘well, the accused committed an offence on 24 February, therefore he must have been the one who discharged the firearm on 23 February’ or vice versa. You also cannot reason that because he committed one offence he is the sort of person who discharges firearms and therefore it is more likely he is guilty of the other count. That type of reasoning is prohibited by the law and you cannot reason that way.
[12] Appeal Book at 56-7.
Further, in directing the jury as to the elements of each offence, the trial Judge said that before convicting the appellant of any count, the jury must be satisfied that the appellant was the person who discharged the firearm. His Honour stated that to convict the appellant of any offence it is insufficient for the prosecution to prove that the appellant was present in the vehicle whilst someone else discharged the firearm.[13] His Honour said:[14]
… Even if you are satisfied beyond reasonable doubt that the accused was in the car, you must still then consider whether you are satisfied beyond reasonable doubt he was the person holding the firearm and he was the person discharging the firearm.
[13] Appeal Book at 40, 51.
[14] Appeal Book at 73.
As to the recognition evidence, the trial Judge cautioned the jury that Ms Latham’s evidence of her ‘identification’ or recognition of the appellant as the person who discharged the firearm needed to be treated with ‘some caution’ and to ‘approach this evidence with great care’.[15] His Honour also highlighted aspects of the circumstances of Ms Latham’s recognition of the appellant as the person who discharged the firearm which may undermine her ability to recognise the appellant and the accuracy of her evidence that it was the appellant who did so.[16]
[15] Appeal Book at 65-6.
[16] Appeal Book at 66-7.
As to all witnesses, the trial Judge directed the jury that they were entitled to accept some parts of a witness’s evidence but reject others.[17]
[17] Appeal Book at 25.
At no stage during the summing up did the trial Judge direct the jury that if they were not satisfied beyond reasonable doubt that the appellant was the person who discharged the firearm for Counts 2 and 3, they could not find the appellant guilty of Count 1. As discussed earlier, the prosecution case in proving Count 1 relied upon circumstantial evidence, including the evidence of Ms Latham that she recognised the appellant as the person who discharged the firearm during the incident the subject of Counts 2 and 3. At trial, defence counsel made the submission that if the jury were not satisfied beyond reasonable doubt of Ms Latham’s evidence that it was the appellant who discharged the firearm for Counts 2 and 3, they could not find the appellant guilty of any count.
Whilst the trial Judge did not instruct the jury in those terms, namely that if the jury were not satisfied of Ms Latham’s evidence that it was the appellant who discharged the firearm for Counts 2 and 3, they could not convict the appellant of Count 1, the trial Judge in summarising defence counsel’s address said: ‘[Defence counsel] correctly submitted that you must accept the evidence of Ms Latham’s identification of the accused on 24 February as true and accurate, beyond reasonable doubt, to be able to find the accused guilty of any count.’[18]
[18] Appeal Book at 73.
We do not consider that the trial Judge’s comment that defence counsel’s submission was ‘correct’ can be elevated to a direction or instruction to the jury that should they not accept Ms Latham’s evidence as to her recognition of the appellant as the person who discharged the firearm on the second occasion, they could not convict the appellant of any count. The trial Judge gave a thorough and comprehensive summing up and if he intended to give such a direction or instruction to the jury he would have done so in express terms. There was no direction to that effect when the trial Judge summarised the evidence relevant to the legal elements of each count, nor when instructing the jury as to the various pieces of circumstantial evidence relied upon in respect of each count, nor when giving directions as to his view as to the recognition evidence.
In our view, the trial Judge was simply commenting on the force of defence counsel’s submission that should the jury not accept beyond reasonable doubt Ms Latham’s recognition of the appellant as the shooter, the jury should acquit on all counts. Consequently, there can be no submission in this appeal that the jury, in finding the appellant guilty of Count 1 and not guilty of Counts 2 or 3, failed to follow the trial Judge’s directions.
Verdict unreasonable or cannot be supported having regard to the evidence
Sections 158(1) and (2) of the Criminal Procedure Act1921 (SA) provide:
158—Determination of appeals in ordinary cases
(1)The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a)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; or
(b)the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)on any ground there was a miscarriage of justice.
(2)The Court of Appeal may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The test to be applied in determining whether a jury verdict is unreasonable or cannot be supported having regard to the evidence was enunciated by the High Court in M v The Queen.[19] In that case, the plurality said:[20]
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)
[19] (1994) 181 CLR 487.
[20] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.
An appeal court must ask itself whether it thinks on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence. In a case where one of the circumstances said to result in an unreasonable verdict is inconsistency, the issue is not only whether the verdict was open ‘upon the whole of the evidence’ but also whether the verdict was open on the totality of the evidence having regard to all relevant facts, including that the jury acquitted on one or other counts on the information.[21]
[21] TK v The Queen (2009) 74 NSWLR 299 at [135] per Simpson J.
General principles on inconsistency of verdicts
In MacKenzie v The Queen, the High Court considered the circumstances in which an appellate court will intervene by reason of a factual inconsistency between verdicts.[22] In that case, the Court outlined the approach an appellate court must take as to factual inconsistency between verdicts. Justice Gaudron, Gummow and Kirby JJ said:[23]
… Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.
…
… Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”
(footnotes omitted)
[22] (1996) 190 CLR 348.
[23] (1996) 190 CLR 348 at 366, 368.
In MFA v The Queen, the High Court said that there are a number of considerations that might provide a rational explanation for verdicts which may appear inconsistent.[24] They may include matters such as a jury’s adherence to the separate consideration direction and instruction that the evidence of a witness may be accepted in whole or in part, and the high standard of proof in criminal cases. In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ said:[25]
Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
[24] (2002) 213 CLR 606.
[25] (2002) 213 CLR 606 at [34].
In both MacKenzie v The Queen and MFA v The Queen, the High Court approved of the remarks of King CJ in R v Kirkman.[26] In that case, King CJ said:[27]
… I mentioned earlier, however, that there was a qualification to the proposition that if there were no other issue in this case but consent, the verdicts would necessarily be inconsistent with one another. The qualification I have in mind is that juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused which might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information.
[26] (1987) 44 SASR 591.
[27] R v Kirkman (1987) 44 SASR 591 at 593.
The appellant’s contentions
The appellant contends that the guilty verdict on Count 1 is unreasonable as there is no direct evidence of the identity of the offender and the circumstantial evidence led to prove the appellant is the offender is so weak it does not exclude a hypothesis consistent with the appellant’s innocence, namely that another person discharged the firearm. Further, the appellant contends that the verdict on Count 1 is unreasonable on account of it being inconsistent with the jury’s not guilty verdict on Count 3. The appellant submits that having regard to the issues in dispute at trial, there is a factual inconsistency between the jury’s verdict of not guilty on Count 3, in that logically it should have led the jury to entertain a doubt as to guilt on Count 1.
The two bases upon which the appellant contends that the guilty verdict for Count 1 is unreasonable are intertwined. The only contested issue at trial on Counts 1 and 3 was whether the prosecution had established the identity of the person who discharged the firearm on each occasion. An important piece of circumstantial evidence to prove the appellant was the offender for Count 1 was Ms Latham’s direct evidence that the appellant discharged the firearm during the incident the subject of Counts 2 and 3, thus leading to a finding that he had access to, and possession of a firearm the previous day which also left a 9 mm casing when fired. The appellant submits that his acquittal on Count 3 means that the jury were not satisfied that the appellant was the person who discharged the firearm on the second occasion. Accordingly, the appellant submits that the circumstantial case as to the offender’s identity on Count 1 was sufficiently weakened such that the guilty verdict was unreasonable and cannot be supported having regard to the evidence and the jury must have entertained a doubt as to the appellant’s guilt. It is the appellant’s contention that there is a factual inconsistency between the guilty verdict on Count 1 and the not guilty verdict on Count 3 which is incapable of rational explanation.
Consideration
We are satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of Count 1. The prosecution case in proving that the appellant was the person who discharged the firearm was entirely circumstantial. In undertaking an independent assessment of the evidence, it is important to bear in mind that the strength of the evidence in a circumstantial case lies in the combined force of the various pieces of evidence considered in their entirety, rather than considering the evidence in a piecemeal fashion. However, an accused person cannot be found guilty beyond reasonable doubt if there is a rational hypothesis consistent with their innocence. The accused’s guilt must be the only rational inference which can be drawn from the circumstances established by the evidence looked at as a whole.

Upon an assessment of the whole of the evidence, and having regard to the appellant’s acquittal on Count 3, we are satisfied it was open to the jury to find that the appellant was the offender who discharged the firearm during the first shooting the subject of Count 1. Indeed, we consider there was a relatively strong circumstantial case in support of Count 1. The appellant had access to a red vehicle of a model consistent with that used by the offender. The CCTV footage provided evidence from which it could be inferred that the appellant left his residence alone in a model of a vehicle consistent with that used in the first incident, and at a time proximate to the commission of the offence. The appellant was driving the vehicle and was the only person seen leaving or returning in that vehicle. It was open to the jury to conclude there was only one person in the vehicle at the time of the commission of Count 1. The only evidence suggesting that there was more than one person in the vehicle during the first incident was Ms Latham’s somewhat ambiguous and vague comment that she saw ‘shadows’. The appellant had a motive to commit the offence, namely his animosity towards the victim, Mr Sailor, and there was direct evidence from Ms Latham that the appellant had acted on that animus on the preceding day.
As to the second incident, the jury’s not guilty verdict on Count 3 was consistent with the jury not being satisfied beyond reasonable doubt that the appellant discharged the firearm. However, the evidence overwhelmingly supported a finding that there was more than one person in the vehicle during the second incident. The appellant’s acquittal on Count 3 can be explained by the jury having been satisfied that the appellant was present in the vehicle and driving the vehicle (as supported by the CCTV footage, the damage to vehicle, and the appellant’s motive and animus to Mr Sailor), but not satisfied beyond reasonable doubt that the appellant was the person in the vehicle who discharged the firearm. That conclusion is consistent with the evidence of Mr Ploenges that the person who discharged the firearm had dark, scraggly hair and was of a dark-ish complexion; the evidence of Mr Vears that he was unsure if the driver or front passenger discharged the firearm; and any reservations the jury may have had about Ms Latham’s recognition of the appellant as the shooter. The jury received careful and thorough directions by the trial Judge to treat Ms Latham’s recognition of the appellant as the person who discharged the firearm with caution and great care.
In those circumstances, in respect of Counts 2 and 3 the jury may well have been satisfied that the appellant was driving the vehicle but not satisfied beyond reasonable doubt that he discharged the firearm. A finding that the appellant was present in the vehicle during the second incident but did not in fact discharge the firearm was relevant in proving that the appellant committed the first count. It added weight to the evidence of the appellant’s animus towards Mr Sailor and his motive to commit the offence and strengthened the prosecution case on the first count. When explained in that way, the acquittal on Count 3 is not factually inconsistent with the guilty verdict on Count 1, nor is it incapable of a rational explanation.
Significantly, there was evidence which supported a finding of only one person being in the vehicle during the first incident and evidence which supported a finding of at least three persons being in the vehicle during the second incident. The trial Judge did not leave joint enterprise as a basis for liability in respect of any count. The jury were instructed on more than one occasion that they needed to be satisfied that the appellant was the person who discharged the firearm to be convicted of any count. The jury were also expressly instructed to acquit the appellant of Counts 2 and 3 if they were satisfied that he was present in the vehicle whilst another person discharged the firearm. We are satisfied that on the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the only person in the vehicle during the first incident and that he discharged the firearm on that occasion, whilst accepting that he was driving the vehicle on the second incident and entertaining a doubt that he was the person who in fact discharged the firearm. Thus, there is a clear and rational basis for reconciling the verdicts of guilty on Count 1 and not guilty on Count 3.
We are satisfied upon an assessment of the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on Count 1. The guilty verdict on Count 1 was not unreasonable having regard to the relatively strong circumstantial case that the appellant discharged the firearm during the first incident, and notwithstanding the appellant’s acquittal on Count 3 which is capable of rational explanation.
Conclusion
We dismiss the appeal.