New South Wales Court of Criminal Appeal CITATION : Regina v Karki [2002] NSWCCA 67 FILE NUMBER(S) : CCA 60025/00 HEARING DATE(S) : 31 October 2001 1 November 2001 JUDGMENT DATE : 18 March 2002 PARTIES : Regina Ivesh Karki JUDGMENT OF : Beazley JA at 1; Hulme J at 88; Barr J at 100 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70214/98 LOWER COURT JUDICIAL Studdert J OFFICER : COUNSEL : Crown: G Smith Karki: P Boulten SOLICITORS : Crown: S E O'Connor Karki: Glen K Walsh CATCHWORDS : Criminal Law - Appeals - appeal against conviction - whether proviso applies under s 6(1) of the Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : Criminal Appeal Act 1912 (NSW), s 6(1) RPS v R (2000) 199 CLR 620 Azzopardi v R (2001) 75 ALJR 931 R v Giri [2001] NSWCCA 197 R v Storey (1978) 140 CLR 364 CASES CITED: Wilde v R (1988) 164 CLR 365 R v Bozzola [2001] NSWCCA 8 Stingel v R (1990) 171 CLR 312 Masciantonio v R (1995) 183 CLR 58 R v Green (1997) 191 CLR 334 Zecevic v DPP (1987) 162 CLR 645 DECISION : Appeal dismissed IN THE COURT of CRIMINAL APPEAL CCA 60025/00 BEAZLEY JA HULME J BARR J Monday, 18 March 2002 REGINA v Ivesh KARKI FACTS The appellant and a co-accused were convicted of the murder of Sajedul Haque who died after being kicked in the face and stomped on by the appellant, his co-accused and a group of others. At the trial neither the appellant nor the co-accused gave evidence. The trial judge gave a direction that: "The relevance of the fact that the accused has not given evidence can only go to the value, or the weight, which you can give to the evidence which the Crown witnesses have given". This direction was wrong in law and this was conceded by the Crown: RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 75 ALJR 931. The appellant submitted that his conviction should therefore be quashed. The Crown argued that the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) that 'no substantial miscarriage of justice has actually occurred' should be applied. HELD per Beazley JA (Hulme and Barr JJ agreeing) (i) The misdirection was not so fundamental such that "the proceedings have so far miscarried as barely to be a trial at all" : Glennon v R (1994) 68 ALJR 209; Wilde v R (1988) 164 CLR 365. Per Beazley JA (Barr J agreeing) (ii) The conviction of the appellant was inevitable: (a) The defences of provocation and self-defence could not have been made out on the evidence. (b) Given the severe kicking and stomping on the head of the deceased, the appellant, who was the main person involved, intended to cause grievous bodily harm to the deceased. (c) Although there were some differences in the observations of the Crown witnesses, the consistency of their evidence as to the appellant's participation in the attack and the nature of the attack was overwhelming. HELD per Hulme J (i) The defences of provocation and self-defence could not have been made out on the evidence (agreeing with Beazley JA and Barr J on this point). (ii) Apart from the circumstances of the fight, there was no evidence that the appellant intended to inflict grievous bodily harm. (iii) Even given the circumstances of the fight, grievous bodily harm was not an inevitable result of the kicking to and stomping on the deceased's head. (iv) Accordingly, the conviction was not inevitable. ORDERS The appeal is dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60025/00 BEAZLEY JA HULME J BARR J Monday, 18 March 2002 REGINA v Ivesh KARKI JUDGMENT 1 BEAZLEY JA: On 5 September 1999 the appellant and one Nitin Giri were convicted of the murder of Sajedul Haque. Each was sentenced to a minimum term of 12 years to date from 15 September 1999 and an additional term of 5 years to commence on 15 September 2011. 2 The appellant appeals against his conviction on the ground that the trial judge erred in his directions to the jury concerning the use they could make of the fact the appellant did not give evidence. An application to appeal against sentence was not pursued. 3 The direction of which the appellant complains was in the following terms: "However, you may when judging the value, or the weight of the evidence which has been put forward by the Crown, in seeking to prove its case against the accused, take into account the election by the accused, not to deny or contradict matters in the evidence at this trial, about which the accused could have given direct evidence. You cannot use the election of the accused not to put forward any denial or contradiction so as to fill in gaps which you might otherwise see in the evidence upon which the Crown relies. The relevance of the fact that the accused has not given evidence can only go to the value, or the weight, which you can give to the evidence which the Crown witnesses have given ." (emphasis added) 4 That direction was wrong in law: see RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 75 ALJR 931 and this Court so held on the appeal of the co-accused Giri: R v Giri [2001] NSWCCA 197. The Crown acknowledged that his Honour's direction was erroneous. 5 The appellant submits that the conviction should be quashed. The Crown argues, however, that despite the error, this is an appropriate case in which to apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW), so that the appeal should be dismissed on the ground that no substantial miscarriage of justice has actually occurred. 6 The proviso under s 6(1) will not be applied, namely where the convicted person has "lost a real chance of acquittal": R v Storey (1978) 140 CLR 364 at 376. In Wilde v R (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ, after referring to the authorities summarised the principle in these terms at 372: "Unless it can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (1955) 93 CLR 493 at 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case." 7 However, the question whether a reasonable jury would inevitably have convicted does not arise where the error is so fundamental such that "the proceedings have so far miscarried as barely to be a trial at all": Wilde at 372-373. See also R v Bozzola [2001] NSWCCA 8; Glennon v R (1994) 68 ALJR 209. 8 In the appeal of the co-accused Giri it was argued that the error was of such a nature. The Court rejected that argument. In his judgment at para 40, Heydon JA (Barr J and Smart AJ agreeing as to the principle) referred to the statement of Mason CJ, Brennan and Toohey JJ in Glennon at 710-712: "In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all'. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso." 9 Their Honours also pointed out that in Wilde: "… the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error." 10 The considerations here are the same as were relevant in the case of the co-accused Giri. The principles in Glennon and Wilde to which I have referred and which were applied in Giri are directly applicable. Accordingly, the misdirection was not so fundamental as to require the conviction to be quashed. Counsel for the appellant did not strenuously argue otherwise. 11 That leaves the question therefore whether the conviction was inevitable in the sense used in Wilde. Was the Conviction of this Appellant Inevitable? 12 The appellant submits that his conviction was not inevitable. He points to the unsatisfactory nature of the evidence given by the Crown witnesses, including inconsistencies in the version of events given by the various eye witnesses, as well as inconsistencies in the evidence of the witnesses themselves. In this regard, he draws on the comment by Heydon JA in Giri's appeal at para 42: "The events on the night in question seem to have blown up quite suddenly to the perception of some witnesses, and without any warning at all to the perception of others. The opportunities for clear observation were not ideal. The Crown witnesses offered a considerable disparity of observation and recollection, both when witness was compared with witness, and when particular parts of what one particular witness said was compared with other parts of what that particular witness said. The case against the appellant was far from being weak, but he could point to the fact that some parts of the evidence of some witnesses were favourable to him in the sense of being capable of creating a reasonable doubt." 13 In addition, the appellant submits that even on the Crown case he had available to him the defences of provocation and self defence, the former which, if accepted by the jury, would have entitled him to an acquittal. It is convenient to deal with those two issues first. Provocation 14 The appellant claimed that the deceased had made fun of his friend and then engaged in taunting and confronting conduct towards himself, such that he was provoked to a sufficient extent to amount to provocation in law. The defence of provocation is contained in s 23 of the Crimes Act 1900 (NSW). That section provides: "(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission; (b) the act or omission causing death was not an act done or omitted suddenly; or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder." 15 In Stingel v R (1990) 171 CLR 312, the High Court said at 324: "The requirement that the wrongful act or insult be of such a nature as to be sufficient to deprive an ordinary person of the power of self control is clearly intended to involve an objective threshold test. It is only if that test is satisfied that it becomes necessary to consider whether the accused was, in fact, subjectively deprived of his or her self-control … As will be seen, however, that does not mean that the objective test was intended to be applied in a vacuum or without regard to such of the accused's personal characteristics, attributes or history as serve to identify the implications and to affect the gravity of the particular wrongful act or insult." 16 Their Honours noted at 325: "Conduct which may in some circumstances be quite unprovocative may be intensely so in other circumstances. Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively." 17 And further at 329: "The assumption underlying the objective test in [the section] is not that to do an act which would otherwise be murder may be an ordinary or reasonable reaction to a wrongful act or insult. The assumption is that a wrongful act or insult may be of such a nature as to be sufficient to provoke an ordinary person to lose his or her self-control to an extent that he or she does the unreasonable and extraordinary, that is to say, an act which, were it not for the provocation, would constitute the crime of murder." 18 The facts in Stingel were that the accused found his former girlfriend, with whom he was obsessed, engaged in sexual activities with the deceased in a car. The deceased told the accused to "piss off you cunt, piss off". The accused then got a butcher's knife from his car and stabbed the deceased to death. He claimed that seeing his former girlfriend engaging in sexual activities and he being abused, caused him to lose control. 19 The trial judge had refused to leave the defence to the jury. The High Court concluded at 336-337: "… no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self control which must be attributed to any hypothetical ordinary nineteen year old. It follows that the learned trial judge was correct in declining to leave a defence of provocation … to the jury." 20 In Masciantonio v R (1995) 183 CLR 58, Brennan, Deane, Dawson and Gaudron JJ stated at 66-67: "The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions." See R v Green (1997) 191 CLR 334. 21 The trial judge left the question of provocation to the jury in respect of the first stabbing incident but not the second. 22 The incidences upon which the appellant relied as establishing provocation arose at the outset of the confrontation between him and the deceased and continued until shortly before the assault on the deceased which led to his death. According to the version of events given by the appellant in the ERISP the incidents may be relevantly identified as follows: (i) the initial incident at Illusions; (ii) the incident near The Kings Cross' Nightclub; (iii) the two exchanges on the return to Illusions; (iv) the pool room incident at Illusions; and (v) the incident on leaving Illusions. The period of time involved was of uncertain duration. To the extent it can be assessed from the appellant's ERISP, the provocation occurred sporadically over about 2 ½ hours. From the evidence of other witnesses it was possibly longer. Evidence of Provocation in the ERISP 23 The appellant first saw the deceased (whose nickname was Jewel) in Illusions nightclub, Kings Cross at about midnight. The appellant was with two friends, the co-accused Giri and another man 'Noggin'. The appellant said that the deceased starting laughing at the way his friend was dancing and said something to him. He said that: "then my [friend] went over him and I think he said, Sorry, and all these things…" 24 The appellant next said: "and I got made(sic) with my [friend] and I told my [friend] when he was saying sorry to him because it's not your fault. It's his fault. … … … so I told him what, what, If he laugh, don't apologise him, and I took my [friend] like this and I said, Don't ever apologise. When you apologise, I just took him on the front and said, Do not apologise. Is no use apologising to him because is not our fault. is, it's the way he's laughing. Then being a really smart arse I went over to [the deceased] and said, What, what are you making so fuss about me, why don't you talk to me, and all these things, and, and after that I can't recall, and I, then I don't think what I recall is, and he started saying, You want to fight and all these things. … and I say, Let's not fight. If you want to fight, I, I'm alone. If I have someone, when, but I don't want, it's not going to be good and another bloke step in who was a good person. He said, No, let's not fight. We are like brothers, why should we fight? We from overseas. I told him, O.K. Then it, it, somebody start, then I went out and I went to the Kings Cross discotheque." 25 It is not entirely clear either from the evidence what period of time elapsed between leaving Illusions and going to and eventually leaving The Kings Cross' Nightclub. However, there is some evidence to suggest it was in the order of half an hour. 26 The appellant said that when he came out of The Kings Cross' Nightclub he "met those two guys". It appears from the ERISP that these were the deceased's friends Mahbubur and Islam. He was talking to them when, he said, the deceased came running up and said: "You wanna fight? You wanna fight? I said, if you think you want to fight, why not? He goes, You wanna fight? You wanna fight? And he grabbed hold of me here. … … right here like this and to my oesophagus … 27 Later he said: … I also grabbed him but we didn't throw any single punch at each other, but he was the one who attacked me, you know. … and later on all these guys were acting, and they were saying, Don't fight, don't fight, guys, don't fight, why are you fighting and all these things. … Then he started running, you know. I told his friend that, I don't want to fight, take him home, I said … these friends said he's gunna take that guy to home …" 28 The appellant said he then returned to Illusions where he again saw the deceased. The appellant said the deceased said to him: "You wanna fight, you wanna fight, and all this, and I said, Why don't you apologise to me? He goes(sic), You started this because you made fun. He goes, I'm not going to apologise, let's go outside and fight. I go, All right, let's go outside and then he didn't wait outside …" (emphasis added) 29 It appears the appellant stayed at Illusions for some time after this. Although the sequence is not clear it appears that during this period one of the appellant's friend was ejected from Illusions because he was drunk. The appellant apparently left Illusions but then returned. His friend, however, was not readmitted. 30 Back inside Illusions he again saw the deceased: "Then we had a big, how to say this, like, big stand off type of thing, then he goes, No, no and he goes, let's go out. I said, Let's, he goes, you want to settle down? I said, O.K. Let's, I told him, O.K. We'll settle down. … this is not going to happen any more, we're going to settle down this and let's go outside. And he goes, O.K. Let's go outside, because being, he being more aggressive and more powerful than me on a build, I think so, he was more muscular than me, he goes, O.K like this, and I go, O.K if you want to fight, we'll go, and when we go upstairs, when two of this friends come, then we, we started talking to him, and he goes, You know what, in Bangladesh I live next to airport and if you guys come there you will, the taxi, taxi will take you to my home without even asking. I'm so much popular and I'm such a guy, you know all these things he starts saying." 31 The deceased's friends then intervened: "Then I think one of the guys was at the back and when he heard this he goes, Why you, why you making so big fuss? Whatever you are in Bangladesh doesn't matter. We're here. We are nothing. We are nothing here. Why you making so big fuss about everything? And he goes … all these things. Then we, and one of the guys was very good you know. On that one, when we started having this stand up with him, and I go to those two guys, I tell him, See, brothers, I'm, we not going to do anything and we, we just had a fight. Me and my brother who was not there. I said, We just had a fight with that guy, your friend, not, not, with you guys, you know, I requested like this with two [hand], like, I told him, No, please can you stay out of this? We just had a problem with that guy, not with you guys. Not with you guys. Why, why should we have a problem with you? You, you are, you haven't done anything, you haven't said anything to me. I don't want anything to do, he is just wanting, asking, he, he started saying, I want to have a fight with you. That's what, I just want to, if you want to settle down, let's go, it will be all right because later on in my life, or later on in his life, I said Let's not regretting all these things, you know, then to make the matter more better, so that it doesn't accident any more, so that those guys take him home …" 32 The appellant said he showed them his security officer's identification card: "… saying that, You will respect a security licence, so that he won't fight … If I'm involved in a fight, my licence goes. … so he started laughing as if he didn't believe me. … But on the heat of the moment he goes, That guy was a really good guy. He said, O.K. We understand. … so after that I, I think I went downstairs and stayed there for a while …" 33 The deceased's friends were playing pool in a downstairs room in the nightclub. The appellant went into the pool room and "stayed there for a while" and asked them to: "Tell sorry to me. We'll forget about it. What's the big fuss? Because say sorry, my pride is still, because it wasn't my fault." 34 The appellant challenged one of the men there as to whether the deceased was "your friend". The man said "No, I'm not involved with this". The appellant then appears to have said to the deceased: "…I told him, Just say sorry, we'll finish this, Bro'. Whatever happened, we'll forget about it. But he said, No. He goes, I'm, I'm not saying sorry, I'm not saying sorry. You guys want to fight, let's go outside. These are his words. Then me at the heat of the moment, I also, I think I also said, You want to fight? Then why not, because I'm not going to lay down and take all these offences at me which you have directed towards me." 35 The appellant said the deceased was drunk. The security officer at Illusions apparently approached the group and the appellant told the security officer that the deceased had "started all these things" and asked that he be put out of the club. The deceased, after some further discussion, was removed from the nightclub. 36 The appellant also left the club following the deceased, saying to him: "Come on, let's resolve this, this, we resolve all these things and all these things. He goes, No, we're going to have a fight, and all these things." 37 The fight, as a result of which the deceased died, then occurred. The appellant described what happened in these terms: "And out of the blue nowhere, a guy comes running and they started charging, because the guy was, this guy was here, one of the guy was here, and one guy was here run from my backside. He goes, he slapped the guy, I don't know, whatever, what happened. Then I go, I started running at that guy too. I started running at that guy and that guy, I don't know. Then somebody hit him or something, and that guy was fallen down like this on the road and me being stupid, being what I am, I think I kicked him. That's definite. I kicked him. … He started coming at me and so I just go, hit him once. Yes I did hit him like this. He fell down on the ground. And he, soon as he hit, he was ready to come up so I kicked him once." 38 A number of further matters should be noted at this point. First, the evidence was consistent that the deceased was drunk to some degree. The appellant was also affected by alcohol, but not so as to be drunk. Secondly, it will be recalled that the appellant claimed that the deceased was of a more powerful build than he was. The evidence in that regard is not necessarily consistent. The deceased was 174 cm tall and 68 kilos, which would indicate a person of small to average height and of light to medium build. The appellant is 168-170 centimetres tall. There was no direct evidence of his weight, but as he was present on the appeal it could be observed that he was not of slight build. One of the witnesses, Mr Islam described the deceased as being about the same height as the appellant and both were well built. 39 I have, to this point, approached the matter on the basis of the evidence in the ERISP. I have done so as it might be expected that the appellant would give the best account of conduct which he claims, as a matter of law, amounted to provocation. Having reviewed that material, I have no hesitation in concluding that a jury properly instructed and acting reasonably would be satisfied beyond reasonable doubt that nothing in the conduct of the deceased amounted to provocation. Rather, the impression one gains from it was that both men were somewhat affected by alcohol; there was some taunting which on any view, would have to be considered to be mild; and there was a scuffle which was broken up by some friends. Further, there were some occasions during the course of the evening where the appellant challenged the deceased and there was at least one occasion when the deceased, having been challenged to a fight by the appellant, simply disappeared. 40 There was of course other evidence given in relation to these incidents by the deceased's friends, Mr Islam and Mr Mahbubur to which the court must also have regard. The Initial Incident at Illusions 41 Islam gave the following evidence as to the initial incident between the appellant and the deceased at Illusions: "Q. Jewel was dancing? … A. Yeah, after a while one guy came to him and started talking with him. It appeared that they were arguing. … Q. What happened then? A. When the man left the dance floor, I went to Jewel and asked him what happened. Then he just motioned to go away from here. No worries about that. … A. He kept dancing for another few minutes and then he asked to go out of the Illusions Nightclub and we went towards the Kings Cross Hotel." 42 Mr Mahbubur said that the deceased was dancing and that: "A. … I saw the man push for the Jewel … Two or three times he pushed … Q. Could you see whether they were talking? A. No. Just I see the push and I was thinking maybe is Jewel's friend or something." The Incident Near The Kings Cross' Nightclub 43 Mr Islam gave the following evidence: "A. … then the same guy was in the dance floor and some other persons in front of the Kings Cross Hotel. The guy was leaning on the rail over there and he came forward to Jewel and just asked, 'Hey, you wanted to hit me there on the dance floor' and I mean, the arguing started again and they hold each other, which I tried to, you know, separate them. … A. They hold their neck and just trying to, trying to pull each other. … Q. What part of each other were they holding? A. I think the collar of the shirts. … A. … I tried to push them away. … A. At that time it's fairly … in his hand, holding a small knife? … A. The same man [that spoke to Jewel on the dance floor]. … A. Then I found a small cut in my finger by that knife." 44 Mr Mahbubur had wanted to go home when they came out from the nightclub and he tried to get a taxi. He said: "Next I saw the guy, which guy is pushed to the Jewel. He came follow for that place and he start again for the argue with the Jewel. … … They start to again for the pushing. … And they are for the pushing each other. At the time [Islam] is in and [Islam] got it, for the man has it for the knife, who is the push for the Jewel." 45 He said after that he became involved in a conversation with the appellant and his friends. He said he tried to apologise to the appellant. The appellant said: "… I don't have any complaint about you and your friend. You both are, is good. You can go back home. But I want to see him. I want to hit him." 46 The conversation carried on for some little time but was to the same effect. Importantly perhaps, Mr Mahbubur described how the appellant and his friends followed him and Mr Islam back to Illusions. 47 Again, there is nothing in this evidence which speaks of provocation. There was a minor incident in Illusions and a more serious incident in the street, however, the appellant approached the deceased on that occasion and restarted the argument. The appellant also pulled a knife on these two versions. Mr Mahbubur and Mr Islam then attempted to placate the appellant and his friends. During the course of that discussion the appellant spoke of "getting" the deceased, of wanting to hit him. At that time the deceased was no where in sight. 48 Neither Mr Mahbubur nor Mr Islam gave evidence of any other confrontation in the nightclub. Incident on the Return to Illusions 49 Mr Islam said that when they returned to Illusions, the deceased went inside. He and Mr Mahbubur stayed outside for a while and spoke with the appellant, his co-accused and the third person in their group, asking them to be friends. The appellant said to Mr Islam: "It's all right. We don't have any problem with you. You can leave. But we are not going [to], I mean, spare that guy [indicating the deceased]." Emphasis added. 50 He said that appellant then showed him his security officer's card and library card. 51 Mr Islam said he then went into Illusions. He said the appellant and his friend went in and "they got some more people". He said those people followed the deceased up the stairs of the nightclub which lead to the exit to Darlinghurst Road – "it was not less than 5, 6 or 10 peoples I think". 52 Mr Islam then described the bashing. I will return to that later. 53 The evidence of those witnesses reinforces the view which I had already formed in relation to provocation at para 39. This was an exceedingly weak case to put to the jury on provocation. But the issue having been put, the jury, as I have already said, would not have been satisfied beyond reasonable doubt that provocation has been established. Self Defence 54 The appellant also claimed that on the Crown case, the defence of self defence was open to him. 55 In Zecevic v DPP (1987) 162 CLR 645, Wilson, Dawson and Toohey JJ stated at 661: "The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it , or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary. … A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response . A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm." (emphasis added). Evidence of Self-Defence in the ERISP 56 The evidence of self-defence has to be considered in the context of the fight itself. Again, it is necessary to refer to that in some detail and it is again convenient to deal first with the evidence as it emerged from the ERISP. 57 The appellant said that the fight commenced some thirty to forty minutes after he had spoken to the deceased's two friends and shown them his security card. 58 He said there was a lot of people gathering. Asked where the deceased was when he kicked him, the appellant said: "He just lying floor, and he was going to get up so I just kick him so that he doesn't get up or kill me." 59 He asked what foot he was kicking with. He responded: "I don't know which one because I was kicking so fast." 60 This answer does not sit comfortably with the appellant's version that he only kicked the deceased once. 61 The appellant continued: "He was trying to get up. I think he was like this so I just kicked him so that he doesn't get up because everyone knows that he was the most strongest of all." 62 It is significant when considering the defence of self defence to keep in mind that this was a joint criminal enterprise. It was not a case of one person against another. Even on the appellant's version of events in the ERISP, three of them rushed at and/or attacked the deceased from behind, hitting him to the ground. The chances of the deceased being able to get up and put the appellant in fear of his life, when the appellant had at least two friends actively engaged in attacking the deceased, would be slim. Accordingly, even on the ERISP, I consider that the defence of self defence has not been made out. Evidence of Islam and Mahbubur 63 The likelihood that this defence ever had any prospects of success is even further diminished by the evidence of Islam, Mahbubur and other eyewitnesses. Mr Islam described the bashing in these terms: "… Jewel came out of the Illusions Nightclub and those people rushed behind him and I didn't think that something is going to happen … … they followed him … It was not less than five, six or ten peoples I think. … … I saw that they started bashing to Jewel, when I came out [of Illusions]. … They all was on him, especially Ebis, Nitin and Noggin. [This was a reference to the appellant, Giri and their friend, respectively.] … They were bashing and kicking Jewel and at the same time I saw Jewel fell down on the street and it was heavily bleeding and the last I saw [the appellant] who was kept kicking him continuously. Q. … you say [the deceased], you told us, fall down? A. Yes. … Q. When he fell down did you see him on the ground? A. Yeah. Q. Was he doing anything, or was he just lying there? A. Already he became unconscious. … A. … the last person who was [the appellant], who was still kick him. I saw it very clear. … He was unconscious lying on the floor and the guy he was, just kept kick on his head …" 64 He said he also saw the co-accused kick the deceased. In all, he said the deceased was being kicked by possibly up to ten men. 65 Mr Mahbubur's description was in the following terms: "… I said, 'Jewel, please I want to go home.' And after we come out together, Jewel behind [Islam] middle. I come first. And all of guys follow us. … After when we come outside and I try to the cross the road but the who's pushed the Jewel, they tried to – Jewel just to walk and they try to catch for the Jewel and short guy he jump and he catch for the Jewel and started for the, his start for the fighting. Hit for the Jewel. And they take for the Jewel for the corner, close to the telephone booth and there is a happening start. … The short guy is jump and because when he saw that Jewel is just walking and he jump and catch and he start everythings. … Q. You say he jumped and caught Jewel? A. Yes. Q. From behind? A. Behind. … Q. Did the first man, the short man, did the short man take hold of Jewel? A. Yeah. Q. From behind? A. Behind. … … they are hitting to the Jewel, Jewel bleeding … suddenly, I don't know whose come and hit, hit for me. … Next is the guy, the both guys who's start from beginning, all come and start to the fight, hit to the Jewel. … … of a sudden Jewell fall down and they come and hit with the boot … They were punching, kicking." 66 When the deceased fell to the ground, Mahbubur described him as bleeding. He was groaning and already "senseless". Evidence of Other Witnesses 67 There were several other eye witnesses to the bashing. 68 One of those, Mr Diolosa, was employed as a security guard at the Hungry Jack's restaurant on Darlinghurst Road, Kings Cross. His attention was brought to the fight by some screaming. In his statement to the police, Mr Dioloso stated that he saw one of the attackers, who on the totality of the evidence was identifiable as the accused, kicking the deceased as hard as he could, three to four times. Giri then pushed him away, but before both left, the accused: "returned and kicked [the deceased] a further two or three times to the head and face … these kicks also appeared to be very hard. He then stomped once on the side of the [deceased's] head with his right foot before kicking him once more in the face with his right foot. The last kick seemed extremely hard." 69 In his evidence-in-chief, Mr Diolosa said he saw the deceased being hit by one of the attackers. He also saw the deceased fall to the ground, but did not see what caused that to happen. From where he was standing he could not see whether the deceased had attempted to get up. He said "they kicked him to death and they ran away". 70 He described both the appellant and the co-accused Giri as doing the kicking. He said the attackers were "putting a lot of weight into their kicks". 71 Although Mr Diolosa's evidence-in-chief was a more abbreviated description than that contained in his police statement he confirmed the contents of the statement during his cross-examination. 72 Mr Diamond was the doorman at the Pink Panther Nightclub in Darlinghurst Road, two doors from Illusions. He said he saw four people emerge from Illusions – two were arguing. This lasted about five minutes. He said they walked up the street and then one man hit the deceased who fell to the ground. He said: " It knocked him out , so it must have been a hard punch." (emphasis added) 73 He said the deceased landed flat on his face. He was about ten feet away when this happened. He said the man who punched the deceased then kicked him and then "the other fellow started kicking him" in the head. He described the kicks as "hard" kicks. 74 Mr Diamond also described the deceased's reaction to the argument he observed as the men emerged from Illusions as being "just [wanting] to get away from him". 75 Mr Thompson was a resident of Kings Cross. He too observed an argument between a group of men. He said the group comprised seven to eight people. He also saw the deceased try to walk away from the group and saw one of the group approach from behind, run up and give the deceased "an open sort of slap", a second man punched him and then "a bit further up basically en masse the group sort of attacked this guy and he fell, he went down on the floor". 76 He described the deceased as not being "that interested in having a fight or anything like that" and that he did not fight back. He described the attack in these terms: "Basically the whole group … just really started a really frenzied kicking attack on the guy." 77 He was then asked: "Q. When you say started a 'frenzied attack on the guy' what did they do? A. Just basically sort of going in and kicking him and then perhaps they'd sort of come back out and then sort of go back in and land another kick on him, sort of round his body, head, fairly indiscriminately." 78 Mr Thompson said that there was a group of males kicking and the deceased was probably kicked about 20 times. He then continued the description as follows: "A. … some guy made some comment about 'I'm going to get the police' and the guy, the guy was in quite bad way, and the majority of the group sort of basically moved away and started to like, I think they probably realised this guy was pretty badly hurt and they sort of moved, the majority of them moved away from the guy away past Hungry Jack's, walked up off in that direction. It was basically two guys left standing over the [guy] who was on the ground looking like he was unconscious at this point and one of the guys basically just stomped on the guy's head three times with his right foot. Q. When you [say] 'stomped on his head' what did he do? A. Just basically raised his foot up and pretty much with full force just stamped on his head." 79 Mr Thompson was 2½ - 3 metres away when he saw the stomping. The description he gave of the two men who continued the attack after the others ran away fitted the appellant and the co-accused Giri. Importantly for present purposes, Mr Thompson described the appellant as the person who stomped on the deceased's head. 80 Mr Page, who was with Mr Thompson, also described the deceased on the ground unconscious. He saw one or possibly two persons kick the deceased. However, he was not in the immediate proximity of the fight for the whole time as was Mr Thompson, as he had gone to an ATM and caught up with Mr Thompson when the fight was in progress. 81 Ms Taria was the on duty manager at the Hungry Jack's restaurant and also saw the fight. She saw punching, the deceased fall to the ground, and she saw him being kicked and saw someone "stomping on his head". She said two people did the kicking and one did the stomping. She said the stomping had occurred once or twice. 82 Finally, Mr Bayes gave evidence of seeing the deceased being grabbed, punched and then falling to the ground. He said someone started kicking the deceased in the head. He said the deceased was kicked quite a lot of times. 83 None of the witnesses gave any evidence of any attempted retaliation by the deceased. Rather, they uniformly described him as walking away from the appellant, of his being attacked from behind and once having been felled to the ground, of being "senseless", or unconscious or lying on the ground groaning. A number of the witnesses also described the deceased as bleeding heavily. Further, given the evidence of the immediacy of the kicking once the deceased was felled and its ferocity, it was highly unlikely that the appellant would have been able to get up. 84 It follows that the defence of self defence could not have been made out on the evidence. 85 Once having disposed of those two matters, the question which remains is whether, on the evidence, the conviction was inevitable. In my view it was. Given the extent to which I have set out the various accounts I do not consider this issue requires a great deal of discussion. The evidence, including the evidence contained in the ERISP, was that the deceased was hit and was savagely kicked in the head and his head was then stomped on. On the totality of the evidence, including his own admission in the ERISP, the appellant was the main (or, on his version, the only) protagonist in the attack. It was he who was identified as having stomped on the deceased's head. It is apparent from Mr Thompson's evidence that the stomping occurred after most of the attackers had run off and when it was already apparent that the deceased was seriously hurt. The appellant continued the attack even as his co-accused was urging the appellant to leave. The evidence gave every sense that the appellant continued the attack to "finish things off", the deceased already being senseless or unconscious and bleeding heavily. 86 The attack was, as Smart AJA said in Giri, obviously intended to cause grievous bodily harm. There could be no other explanation for the savagery of the attack. This was so notwithstanding that there were some differences of observation by the various witnesses. That is understandable. They saw the events at different times, from different places and at varying distances. There were also some changes in the evidence of the eyewitnesses from their police statements. Again that is to be expected given the lapse of time between the incident and the trial. In some instances the difference in the evidence worked against the deceased, as the police statement was more detailed. Mr Diolosa's evidence was a good example of this. The other differences were not, in my opinion, critical. The consistency in the evidence of the eyewitnesses as to the appellant's participation in the attack was, however, overwhelming. Orders 87 In my opinion, the appeal should be dismissed. 88 HULME J: I have had the benefit of reading the reasons of Beazley JA in this matter. I agree with her Honour that the trial judge erred in his directions to the jury concerning the appellant's failure to give evidence. 89 I also agree with her Honour's remarks concerning the topics of provocation and self defence. No reasonable jury could have found in favour of the appellant upon either of these bases. 90 However, I am unable to agree with her Honour that the appellant's conviction was inevitable. Thus this is not a case for the application of the proviso to Section 6 of the Criminal Appeal Act. 91 There can be no doubt that the appellant was party to a joint criminal enterprise to assault the deceased and to inflict on him actual bodily harm. There can be no doubt that the victim was bashed a number of times on and about the head, that the appellant was present and had not withdrawn from the criminal enterprise when this occurred and indeed that he did some of this kicking. 92 There can be no doubt also that someone stomped on the victim's head. Some of the evidence suggests this was the appellant but much of the evidence as to the identity of this offender was so imprecise or confusing that any conclusion that the appellant was the stomper was by no means inevitable. 93 But be that as it may, it does not seem to me to follow as an inevitable inference that any of the mental states necessary to sustain a murder conviction existed. 94 Apart from the circumstances of the fight itself, there is no evidence that any one intended to kill or do grievous bodily harm to the deceased. Certainly the appellant and his friends would seem to have been irritated by the deceased and resolved to punish him but there is a vast difference between an intent to harm and an intent to inflict not merely serious but very serious bodily injury. Indeed the difference is such that, making due allowance for the variations within humanity, it is difficult to think that any rational human being, even if affected by alcohol, could have formed the latter intent. 95 By parity of reasoning it is impossible to conclude that the appellant, prior to the fight, must have contemplated either the victim's death or the infliction or intended infliction of grievous bodily harm on him. 96 When one comes to the fight itself, one must recognise that kicks to, or stomping on, a person's head is not unlikely to cause grievous bodily harm. On the other hand, such damage is by no means inevitable, particularly if any kicking is done with joggers – the type of footwear the appellant seems to have been wearing. 97 One must also recognise that in the heat or excitement of an argument or a fight, people go further than they ever would on mature consideration. They lash out and say or do things without consideration of the consequences and with no intent which goes further than for example the making of a statement or the striking of a particular blow. Just as the strained relationship which commonly follows a heated argument is often, if not generally, unintended so in my view are not infrequently the natural consequences of the application of physical force. 98 Thus it does not seem to me that an inference of intent to do grievous bodily harm must inevitably follow from the circumstances of the fight. Furthermore, I can well conceive of the possibility that during the fight the appellant did not turn his mind to the possibility that one of the other participants might intend to do grievous bodily harm to the deceased or that the latter's death would occur. 99 In my view, the appeal should be allowed and a new trial ordered. 100 BARR J: I agree with Beazley JA. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.