Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cavanagh v R; McIvor v R; O'Keefe v R [2023] NSWCCA 164 Hearing dates: 2 November 2022 Date of orders: 30 June 2023 Decision date: 30 June 2023 Before: Rothman J at [1]; Fagan J at [215]; R A Hulme AJ at [298] Decision: A. In the application by Barry Paul Cavanagh (2019/113050): (1) Time to file the application for leave to appeal is extended to 30 September 2022; (2) Leave to appeal is granted; (3) Appeal is allowed; (4) The conviction for murder is quashed; (5) Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Barry Paul Cavanagh, is remitted to the District Court for re-trial on the charge of manslaughter; (6) The matter is listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge. B. In the application by Nathan McIvor (2019/74438): (1) Leave to appeal is granted; (2) Appeal is allowed; (3) The conviction for murder is quashed; (4) Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Nathan McIvor, is remitted to the District Court for re-trial on the charge of manslaughter; (5) The matter is listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge. C. In the application by Sean David O'Keefe (2019/111830): (1) Leave to appeal is granted; (2) Appeal is allowed; (3) The conviction for murder is quashed; (4) Pursuant to s 8 of the Criminal Appeal Act 1912 (NSW), the applicant, Sean David O'Keefe, is remitted to the District Court for re-trial on the charge of manslaughter; (5) The matter is listed for Mention in the District Court Arraignment List on 14 July 2023 or such other date as directed by the Criminal List Judge. Catchwords: CRIME – appeals against conviction – death arising from assault by three accused – unreasonable verdict – murder – extended joint criminal enterprise – reasonable doubt on analysis of evidence of mental element – reasonable doubt that participants agreed to inflict grievous bodily harm – reasonable doubt that each participant contemplated that one of them might intend to inflict grievous bodily harm – conviction quashed – remitted for trial for manslaughter (by majority) – appropriateness of substituting verdict discussed; CRIME – appeals against conviction – directions on admissions – failure to direct adequately on evidence of consciousness of guilt – evidence not used in a manner requiring directions sought – grounds dismissed – use of evidence against deceased to prove tendency to act irrationally and violently when drug affected – open to judge to question whether tendency proved against deceased Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 6(1), 6(2), 7(2), 8 Criminal Procedure Act 1986 (NSW), s 128 Evidence Act 1995 (NSW), s 165 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Choudhary v The Queen [2013] VSCA 325 Christian v The Queen [2012] NSWCCA 34; (2012) 223 A Crim R 340 Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Fantakis v R [2023] NSWCCA 3 Gall v R; Gall v R [2015] NSWCCA 69 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Otto v Tasmania [2021] TASCCA 15 Payne v The Queen [2015] VSCA 291 R v BCQ [2013] QC 388; (2013) 240 A Crim R 153 R v Bryce (No 2) [2014] NSWSC 498 R v Ciantar; DPP v Ciantar (2006) 16 VR 26; 167A Crim R 504; [2006] VSCA 263 R v Cook [2004] NSWCCA 52 R v Heyde (1990) 20 NSWLR 234 R v Miah [2003] EWCA Crim 3713 R v O'Keefe [2021] NSWSC 6 R v Oth [2022] QCA 53 R v WBS [2022] QCA 180 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Barry Paul Cavanagh (Applicant) Nathan McIvor (Applicant) Sean David O'Keefe (Applicant) Crown (Respondent) Representation: Counsel: W Terracini SC (Applicant Cavanagh) S Odgers SC / S Pararajasingham (Applicant McIvor) D McMahon (Applicant O'Keefe) E Balodis (Crown)