New South Wales Court of Criminal Appeal CITATION: WHITMORE v THE QUEEN; THE QUEEN v WHITMORE [2010] NSWCCA 157 HEARING DATE(S): 3 May 2010 JUDGMENT DATE: 21 July 2010 JUDGMENT OF: Basten JA at 1; Johnson J at 111; Rothman J at 112 (1) In the appeal of Katrina Whitmore – (a) extend time to seek leave to appeal; DECISION: (b) grant leave to challenge the directions to the jury; (c) dismiss the appeal. (2) In the Director's appeal against sentence – dismiss the appeal. CATCHWORDS: CRIMINAL – appeal – conviction – whether misdirection in summing up to jury – repetition of part of correct document – principle correctly stated in document before jury – failure to object - CRIMINAL – appeal – conviction – verdict of jury unreasonable or unsupported on evidence – unreliability of witness – Criminal Appeal Act 1912 (NSW) s 6(1) - CRIMINAL – appeal – sentencing – alternate bases for conviction – finding of facts by trial judge – standard of proof - CRIMINAL – appeal – sentencing – murder – manifest inadequacy – assessing seriousness of offence based on facts and inferences of trial judge – objective gravity of offence, aggravating circumstances, prior convictions, offender history Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B; Table to Div 1A, Pt 4, item 1 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10 Criminal Appeal Rules, rr 3A, 3B CATEGORY: Principal judgment Einfeld v Regina [2010] NSWCCA 87 GAS v The Queen [2004] HCA 22; 217 CLR 198 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 CASES CITED : Mulato v R [2006] NSWCCA 282 R v Harris [1961] VR 236 R v Holton [2004] NSWCCA 214 R v Isaacs (1997) 41 NSWLR 374 R v Sandford (1994) 72 A Crim R 160 PARTIES: Katrina Megan Whitmore – Appellant/Respondent The Queen – Respondent/Appellant FILE NUMBER(S): CCA 2008/13907 COUNSEL: Mr S J Odgers SC - Appellant/Respondent Mr P M Miller for the Crown SOLICITORS: Bayside Solicitors – Appellant/Respondent S Kavanagh (Solicitor for Public Prosecutions) for the Crown LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2008/13907 LOWER COURT JUDICIAL OFFICER: Adams J LOWER COURT DATE OF DECISION: 10 June 2009 LOWER COURT MEDIUM NEUTRAL CITATION: R v Whitmore [2009] NSWSC 520 IN THE COURT OF CRIMINAL APPEAL CCA 2008/13907004 CCA 2008/13907003 BASTEN JA JOHNSON J ROTHMAN J 21 July 2010 Katrina Megan WHITMORE v THE QUEEN; THE QUEEN v Katrina Megan WHITMORE Headnote On the night of Australia Day 2007, Joseph Durrant (now deceased) and Guy Marrett were walking home in Mount Pritchard, Sydney. As the two men walked past a house on Phyllis Street, a dog barked at them. A dispute broke out with the residents in that house, which included the appellant (Katrina Whitmore), her partner (Steven Sotiropoulos), the appellant's brother (Frederick Whitmore) and his partner (Chantelle Pullen). A fight resulted, involving the appellant, Mr Durrant, Mr Whitmore, Mr Sotiropoulos and a neighbour, Mr Duncan. The fight concluded with Mr Durrant being stabbed in the back of his right shoulder with a knife, severing an artery near his right lung, leading to Mr Durrant's death. The appellant, her brother and Mr Sotiropoulos were charged with murder. Mr Whitmore was dealt with separately and pleaded guilty to manslaughter. The appellant and Mr Sotiropoulos were put on trial together. The primary basis on which the case was presented was that the appellant wielded the knife, causing the fatal wound. The alternative basis was that she did not strike the fatal blow, but participated in the attack on the deceased, knowing that her brother, Mr Whitmore, had the knife and was aware of the possibility that he might use it to cause grievous bodily harm or death. The appellant was convicted and Mr Sotiropoulos was acquitted. The appellant was sentenced by Adams J to a non-parole period of 10 years, with a balance of term of four years: R v Whitmore [2009] NSWSC 520. The appellant sought leave to appeal against her conviction on two grounds and the Director of Public Prosecutions sought to appeal against the allegedly manifest inadequacy of the appellant's sentence. The issues for determination on the appeals were: (i) whether the trial judge misdirected the jury regarding the alternative basis upon which the Crown alleged the appellant committed murder; (ii) whether the verdict of the jury was unreasonable; and (iii) whether the sentence was manifestly inadequate. The Court held, dismissing both appeals, held: In relation to (i) 1. The failure of the trial judge to correctly encapsulate the alternative basis for conviction when repeating a trial direction was not a material error. First, the concept missing from the later direction was the subject of the earlier direction and was contained in a written document which the jury members had with them at all stages. Secondly, there was no lack of clarity in relation to the document or earlier direction. Thirdly, no complaint was made at the time the later direction was given, even though the directions generally were carefully considered by the trial judge with counsel and counsel where afforded every opportunity to raise matters during the course of the trial and summing up: [70]. In relation to (ii) 2. The authoritative statement in M v The Queen [1994] HCA 63; 181 CLR 487 at 493-494, of the legal basis upon which a challenge of an unreasonable verdict or one unsupported by evidence is based, is not the only available approach. In this case, the question was whether the evidence should be accepted, in part or in whole, and if in part, which parts, with the role played by the jury being relevant: [82]-[85]. M v The Queen [1994] HCA 63; 181 CLR 487 at 493-494 cited. MFA v The Queen [2002] HCA 53; 213 CLR 606 at [25], [49], followed. 3. On either basis on which the case was presented, a jury could reasonably have convicted and the conviction would have been supported by evidence. On the primary basis on which the case was presented, reliance by the jury on Mr Duncan's evidence was not unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). On the alternative basis, reliance could still be placed on aspects of Mr Duncan's evidence: [73]-[81]. In relation to (iii) 4. The complaint that the trial judge "failed to properly assess the objective gravity of the offence" is a misleading description of the circumstances of the commission of the offence. This broad ground of appeal engages the contention that the Court should re-evaluate the seriousness of the offence, on the basis of the facts and inferences found by the judge: [91]-[92]. Einfeld v Regina [2010] NSWCCA 87 at [73]; Mulato v R [2006] NSWCCA 282 at [37] cited. 5. A trial judge is required, in the absence of agreement, to find facts. Where a case has been left to a jury on alternative bases, the facts on which the jury convicted may not be clear and the principles in R v Isaacs (1997) 41 NSWLR 374 at 378D-E should be followed: [93]. R v Harris [1961] VR 236; R v Isaacs (1997) 41 NSWLR 374 at 378B, 378D-E; R v Sandford (1994) 72 A Crim R 160 at 194 followed. 6. On the facts as found, Ms Whitmore did not carry the knife to the scene of the stabbing; she did not intend that it should be used to inflict grievous bodily harm or death; she did not encourage whoever used the knife to take that step. Her culpability depended upon her role in responding to the abuse of her dog and her conduct in continuing the physical confrontation with Mr Durrant, at a time when she knew that her brother had a knife and was aware of the possibility that it might be used to inflict grievous bodily harm. Absent some clear failure by the sentencing judge to advert to a matter which appears to have been clearly established on the evidence, or not to have been controverted, the cases in which this Court would intervene must be rare: [95], [99]. 7. On the claim that the trial judge gave insufficient weight to the appellant's prior convictions, it is understandable in light of his Honour's lack of knowledge as to their circumstances, that his Honour gave little weight to Ms Whitmore's earlier history of minor offending: [100]-[102]. 8. The trial judge, in sentencing, took into account Ms Whitmore's educational history, her ejection from the family home at a young age, her responsibilities as a young mother, the loss of her daughter's father to a drug overdose; and her diagnosis of depression. The sentence, in light of the standard non-parole period for the offence, was undoubtedly lenient. However, the variability of factors in this case, make it difficult to determine that the leniency was so great as to demonstrate manifest inadequacy, requiring the intervention of this Court: [105]-[106]. IN THE COURT OF CRIMINAL APPEAL CCA 2008/13907004 CCA 2008/13907003 BASTEN JA JOHNSON J ROTHMAN J 21 July 2010 Katrina Megan WHITMORE v THE QUEEN; THE QUEEN v Katrina Megan WHITMORE Judgment 1 BASTEN JA: Late on the night following Australia Day 2007, Joseph Durrant and a friend, Guy Marrett, were walking home down an unformed lane, described as a driveway, off Phyllis Street, Mount Pritchard, southwest of Sydney. As the two men walked past the house at 21 Phyllis Street, a dog barked at them. A dispute broke out with the residents in that house, which included the appellant (Katrina Whitmore), her partner (Steven Sotiropoulos), the appellant's brother (Frederick Whitmore) and his partner (Chantelle Pullen). 2 The altercation continued as Durrant and Marrett walked towards the house where they were staying, being 21A Phyllis Street. There was no fence line along the front of the house, but near the house, the altercation developed into a fight, involving Mr Durrant, Mr Whitmore, the appellant and Mr Sotiropoulos. The fight concluded with Mr Durrant being stabbed in the back of his right shoulder with a knife, the weapon entering his back near the top of his shoulder blade, obliquely, so as to sever an artery in the vicinity of the right lung. The wound was fatal, due to massive internal haemorrhaging. 3 The appellant, her brother and Mr Sotiropoulos were charged with murder. Mr Whitmore was dealt with separately and pleaded guilty to manslaughter. The appellant and Mr Sotiropoulos were put on trial together: she was convicted and he acquitted. She was sentenced by Adams J to a non-parole period of 10 years, with a balance of term of four years. 4 The appellant seeks leave to appeal against her conviction on two grounds, namely that: (a) the trial judge misdirected the jury regarding the alternative basis upon which the Crown alleged the appellant committed murder; and (b) the verdict of the jury was unreasonable. 5 The reference in the first ground to the "alternative basis" of the prosecution case requires explanation. The primary basis on which the case was presented was that the appellant wielded the knife, causing the fatal wound. The alternative basis was that she did not strike the fatal blow, but participated in the attack on the deceased, knowing that her brother, who was also involved in the attack, had the knife and aware of the possibility that he might use it to cause grievous bodily harm or death. 6 Of some significance in the prosecution case was the evidence of Mr Adam Duncan, who, on the night in question, was at 19A Phyllis Street, across the driveway from 21A. His account was recorded in an interview conducted by police, and later during a "walk-through" of the scene of the crime. Objection was taken to that evidence at trial and the first ground identified in the notice of appeal challenged the admission of that evidence. That ground was abandoned at the hearing of the appeal, but more will be said below as to the content of the evidence adduced from Mr Duncan. 7 Senior counsel for the appellant conceded that he required leave, pursuant to r 4 of the Criminal Appeal Rules, to rely upon ground (a), as set out at [4] above, no objection having been taken at trial to the directions sought to be challenged. He further conceded, correctly, that leave was required in respect of ground (b), as it did not involve a question of law alone: see Criminal Appeal Act 1912 (NSW), s 5(1). Thirdly, he noted that the applicant required an extension of time, the notice of appeal against conviction not having been filed until almost a year after the date of the conviction: see Criminal Appeal Act, s 10(1) and Criminal Appeal Rules, rr 3A and 3B. 8 Counsel submitted that the Court should hear argument on the merits of the appeal and consider the application for an extension of time and leave in respect of the grounds raised, concurrently. The Court approached the matter on that basis. 9 The second set of proceedings is an appeal by the Director of Public Prosecutions against the leniency of the sentence, pursuant to s 5D(1) of the Criminal Appeal Act. Clearly the materiality of this appeal depends upon the standing of the conviction for murder. Further, the merit of the appeal depends upon an appropriate finding as to the basis upon which the appellant was convicted. The proceedings will, accordingly, be considered in the order discussed above. 10 The applicant should have an extension of time and leave to raise the issues sought to be relied upon. Nevertheless, the appeal should be dismissed. The Director's appeal against sentence should also be dismissed. The prosecution case 11 Phyllis Street, Mount Pritchard runs approximately east-west. Numbers 19 and 21 are on the north side of Phyllis Street. The unformed driveway runs downhill between the two houses, providing access from Phyllis Street to 19A and 21A, which are behind 19 and 21 respectively. Each of 19A and 21A are set at an angle to the driveway, with their front doors approximately opposite each other. The fight occurred between these houses, but on the side of the driveway adjacent to 21A. It is convenient to identify 21 as the appellant's home (the other occupants having been identified above) and 21A as the deceased's home (the occupants having included the deceased and Mr Marrett: it was referred to by some witnesses as 'Greg's house'). The occupants of 19A at the time of the fracas were Mr Adam Duncan and four other persons, being a young man identified in the evidence as THN (then a minor), Jamie Hughes, Renee O'Hara (Jamie Hughes' sister) and Wayne Clothier (Renee's boyfriend). 12 At the bottom of the driveway and beyond the two houses, 19A and 21A, was a creek running through a reserve. 13 On the other (south) side of Phyllis Street from the driveway, located opposite 19, was 18A Phyllis Street, occupied by Peter and Vicki Lee Cross. They were in bed when the deceased and Mr Marrett came home by taxi and were dropped on Phyllis Street, not far from the front of their house. Mr Cross got up because he heard the men arguing with each other. Ms Cross did not get out of bed, but heard some of the shouted conversation which followed when the appellant's dog barked at the men. Mr Cross had some view down the driveway in the dark, but did not see anything significant. He also heard the shouted conversation in relation to the dog. 14 The events of the evening covered a short period of time and commenced with a verbal exchange as the deceased and Mr Marrett passed the appellant's house and her dog barked. The second stage involved the appellant, her brother and Mr Sotiropoulos leaving her house and following the two men down the driveway. The third stage was the fight which occurred outside the deceased's house. At that stage the three from the appellant's house were joined by at least two of the occupants from 19A, namely Jamie Hughes and Adam Duncan, with THN watching. 15 There is little dispute as to what happened during the first stage, as the deceased and Mr Marrett walked past the appellant's yard and were barked at by the dog. There was undoubtedly verbal aggression on both sides. The significant evidence was that which identified the appellant as behaving in an aggressive manner. Both Mr Cross and Mrs Cross gave evidence of a woman shouting words to the effect "Don't tell my fucking dog to shut up": Tcpt, 11/03/09, pp 163-164, 166 (Peter Cross); 169 and 171 (Vicki Lee Cross). Each also gave evidence that they heard a female voice say, "I'll stab you in the fucking eye": at pp 164 and 167 (Peter Cross) and 169, 171 (Vicki Lee Cross). Both were cross-examined as to whether they could have heard a woman scream "I'll stab you in the fucking neck". Neither accepted that language but each confirmed each other's accounts of the exchange. 16 During the early afternoon of 27 January 2007 the appellant was interviewed by police, the transcript of which was Exhibit G at the trial. It seems not to have been in doubt that the appellant spoke aggressively to the men walking down the driveway. In her interview she stated (Q 91): "And I don't like people talking to my dog like that. I don't even talk to my dog like that. And I yelled out of my kitchen window, you know, then, you know, don't speak to my dog like that. You know, fuck off, get away from her, you know. And they yelled back, and they got into a verbal argument through my kitchen window." 17 She then gave evidence that she went out of the house on to the driveway (Q 96): "And we were still having verbals, you know, calling each other names, you know, and, and my partner, Steve come out too, to hold me, like, to not, 'cause I was getting really agro at that time. And then we went to walk back in the sides, and I can't remember what they yelled out but they yelled out something and that was it. I just went running down there … and my brother ran down too, and my brother was just being verbal at first and was, you know, standing back, you know. They, they weren't in each others faces, they were standing back, you know, like, leave my sister's dog alone, mate, it's only doing its job, you know." 18 The other evidence of the verbal interchange was from Adam Duncan. In his record of interview, which was admitted in evidence, he gave the following account: "Q178 OK. You've said that you heard people coming down the drive? A. Mmm Mmm. Screaming, that was Steve's girlfriend. Q179 How do you know it was Steven's girlfriend? A Like, … she's always screaming. Q180 So you've obviously heard her voice before? A Mmm Mmm. Q181 And heard her screaming before? A Yeah. Q182 And immediately you've recognised that voice as being hers? A Yes. Q183 Did you recognise any other voices? A The people weren't like Steve and his brother like they weren't screaming, and like, at first they were trying to stop her from going down there and she's like, Fuckin', you speak ….. like that, I'll personally come down there and stab you in the neck. She had a knife in her hand. Q184 OK. How do you know she had a knife in her hand? A Because I seen her. She's like, I'll personally stab you in the neck. Q185 So at the time you've heard the yelling, you're in the lounge room? A Yeah. Q186 How do you see her? A Because I've turned and immediately Jamie opened the door and like we standing, just like at the front of the door." 19 It appears that Mr Duncan's evidence concerned a point where the initial exchange has been completed and the appellant, her brother and Mr Sotiropoulos had moved out of their house and started down the driveway towards the deceased's house. The difference between the evidence of the conversation given by Mr and Mrs Cross on the one hand and Mr Duncan on the other is explicable on that basis. 20 The appellant's brother's partner, Chantelle Pullen, saw the trio leave the house, but agreed with a leading question from counsel for the appellant that there was nothing in her hands at that time: Tcpt, 12/03/09, p220(35). She also agreed in re-examination that she could not remember whether she could see the front door: Tcpt, p 227(30). 21 So far as the events which occurred after the appellant left her house were concerned, three persons at 19A on the night in question, Jamie Hughes (Ms O'Hara's brother), THN and Adam Duncan came outside when they heard the yelling and witnessed the events outside 21A. However, the principal witness was Mr Duncan, whose evidence will be discussed below. 22 At an earlier stage in the evening, Mr Hughes, who had been drinking alcohol and had had "a lot of ice", whilst also on medication for schizophrenia, had stabbed himself in the arm with a knife. An ambulance had been called at about 9pm. He was back at Phyllis Street by the time the fighting started. He did not describe the appellant, her brother and partner, coming down the hill behind the two men who lived opposite, nor did he see a knife. 23 THN was also called and gave detailed evidence about the incident in which Mr Hughes had stabbed himself. He went with Hughes to Fairfield Hospital in the ambulance. When the yelling started he did not immediately go out to the front of the house with Mr Duncan and Mr Hughes: Tcpt, 20/03/09, p 558. His evidence relevantly commenced when the fighting was about to commence. 24 Neither the appellant nor her co-accused, Mr Sotiropoulos, gave evidence. A record of interview conducted by police with Mr Sotiropoulos was tendered, but it did not constitute evidence against the appellant. 25 In the result, the critical evidence in respect of the appellant was that of Mr Duncan. However, his evidence at trial was quite unhelpful to the prosecution. The key evidence for the prosecution was a video-recorded record of an interview conducted by police officers with Mr Duncan on 30 January 2007, some three days after the incident. This was tendered and was available to the jury, together with a transcript: Exhibits K and L respectively. 26 Approximately one week after the interview, on 7 February 2007, the police also conducted a video-recorded "walk-through" with Mr Duncan at the scene of the incident. A DVD of the walk-through, together with a transcript, were also tendered and were available to the jury: Exhibits M and N respectively. It was upon these documents that the prosecution case relied. 27 After the customary formalities, Mr Duncan's interview with the police commenced with a general description of what happened on the night in question. He gave evidence that Mr Sotiropoulos, the appellant and her brother were yelling at Mr Durrant and Mr Marrett, who were shouting back. According to Mr Duncan, Mr Durrant threw the first punches and hit Mr Sotiropoulos: Q52. The description continued: "And then I sort of pushed the guy that got stabbed, and I said, what are you doing? And then, the person that was standing up on the stairs like he ran down the stairs and grabbed me and said, stay out of it. Like, we were both wrestling on the ground, and Jamie started in [to] the guy that was wrestling with me. And like I was sort of struggling to get up cause every time Jamie kicked him he wouldn't let go of me and I kept on wrestling and Steve and his brother were like bashing the other [bloke] and Steve's girlfriend. And when I finally got up, Jamie was still kicking that guy and when I looked at other people fighting, Steve and his brother were sort of kicking that other guy and as soon they left, his girlfriend like they didn't, like you know. And by then the other guy's gotten up off the ground from Jamie kicking him and like when I [looked] that they were still fighting and I heard ding, and I seen Steve's girlfriend drop the knife. And then them three took off up the road and like by then like the person who was wrestling with me was walking up the stairs and I seen that other guy staggering up the stairs saying, she got me this that, call an ambulance." 28 The account was given slowly and deliberately. The transcript records the police officer asking "yes?", at intervals between the passages. That was because both police officers were taking the statement down by hand, of which Mr Duncan was clearly aware, and he was stopping and waiting for them to catch up. 29 Detective Constable Graham, who conducted the interview, then explored in more detail each part of the events of the evening. A number of points of clarification were important. First, Mr Duncan was emphatic that he saw the appellant as she came down the hill, with a knife in her right hand, "waving the knife around" and threatening to stab the man who had abused her dog: Q199-Q207. At that stage, both in his interview and in the walk-through, he identified Mr Sotiropoulos and the brother, Frederick Whitmore, as seeking to calm her down. However, there is no suggestion that they sought to take the knife from her. 30 Secondly, Mr Duncan's own involvement in the fighting commenced with him pushing Mr Durrant and himself being pushed away by Mr Marrett. He then wrestled with Mr Marrett, both falling to the ground. Mr Hughes came to his assistance, apparently primarily by kicking Mr Marrett. The young man THN confirmed that aspect of the fight. 31 Thirdly, when Mr Duncan freed himself from Mr Marrett and looked towards the other group, Mr Durrant was on the ground and trying to get up. He appears to have been pushing himself up with his hands behind him, facing Mr Sotiropoulos and Frederick Whitmore, with the appellant standing behind him. He gave a further description in the following passage at Q260: "Q260 OK. And what's Steve [Sotiropoulos] doing? A Like, when she's there like like they were just fuckin talkin she, like he [Steve] was telling her to calm down this that, and then he [Durrant] said something to her and Steve said something back to him, then he [Durrant] threw one or two punches and I pushed him, I said Eh like fuckin, don't worry about it. I said … fuckin [ dog ] … that and then he [Marrett] come running downstairs and like, sort attacking me … stairs and like we started wrestling on the ground and then Jamie started like kicking him [Marrett] and stuff and like, I couldn't see what they were doing at first. I could like hear them fighting and stuff and then as I got up Jaime was still kicking him [Marrett]. I looked at them and like I seen Steve and like his brother like kicking him [Durrant] and stuff and then like, he sort of finally started getting up and like they weren't doing nothing to him then. Then she stabbed him, dropped [ the knife ] off like that and they all took off." 32 The witness used pronouns without identifying the individuals clearly, but, from other descriptions he gave it is clear that the individuals referred to were as indicated in parentheses. (The words "dog" and "the knife", also added and italicized in parentheses may be discerned from listening to the video recording.) 33 In later questions he said that he had been watching for only "a couple of seconds" of the kicking and punching of Mr Durrant, and from a distance of about two metres: Q305 and Q306. He confirmed that the appellant was behind Mr Durrant and screaming, but shook his head when asked if he remembered what she was screaming: Q310. The evidence continued: "Q311 OK. At this time, who has the knife? A Her. Q312 And where is the knife? A In her hand. Like, I don't know, I didn't see it like when she was behind him but, like when he got up I see him, these two like, sort of move away from him and she stabbed him and that's when he's gone, she's got me, and she sort of freaked or something." 34 He then confirmed that he had seen the knife on the ground, which he thought looked like a butcher's knife, with no handle: Q330-Q336. In fact, the blade of the knife was found on the ground, but the handle was not with it. 35 In cross-examination by counsel for the appellant at the trial, Mr Duncan was asked if he had taken 'ice' before he went to the police station and whether he was withdrawing from 'ice' at the time of the interview. Having seen the video of the interview, he said (Tcpt, 18/03/09, p 425(40)): "I looked a bit fucked up but I don't think I was withdrawing." 36 Mr Duncan was also cross-examined as to the effect of alcohol and drugs (Tcpt, pp 282-283): "Q. Earlier in one of the answers that you gave you said there were periods of time when you were awake for weeks? A. Yeah. Q. Did I hear that correctly? A. Yep. Q. So was that the effects of ice? A. Yeah. …. Q. Prior to this occasion when you had drunk a large amount of alcohol the day after, the following day, did you have this problem; remembering back what you did at the time you consumed that large amount of alcohol? A. So what do you mean, if I forget? Q. Yes. A. Yeah. Q. So that sometimes you have a spasmodic recollection; pieces only of what you did at the time you were so affected, true? A. Yep. Q. With ice how did that affect you? A. Sort of same thing. Q. Did it give you this problem; that you had trouble making out reality from fantasy? A. Yep. HIS HONOUR Q. Are you saying that you remembered things that didn't happen actually, is that what you are saying? A. No, I'm – like what is he trying to say? Q. Well, he was asking you whether you could tell the difference between reality and fantasy which I took him to mean could you tell the difference between what was actually happening and what you imagined had happened. That was the distinction he was making, do you see that? A. Well, yeah, I know what you're saying but I couldn't tell because I was on ice. Q. That's what I'm asking you; when you are on ice you've said that you sometimes find it difficult to differentiate, to know what you have actually seen and what you have imagined seeing? A. Mmm mmm. Q. Then that difference is blurred or sometimes you don't even know at all? A. Yeah, that happens on ice. Q. That happens on ice? A. Yep." 37 As noted above, the record of interview, conducted by Detective Constable Graham and Detective Senior Constable Keighran was followed by a recorded "walk-through" conducted by Detective Keighran, a week later. Mr Duncan was also cross-examined as to his state at the time of the walk-through. Counsel for Mr Sotiropoulos put to him that he was not affected by drugs at that time, a proposition which he did not entirely accept, but he did accept the suggestion of the trial judge that he was improving: Tcpt, 18/03/09, p 453(20-30). He agreed that the "psychosis" (meaning the inability to distinguish reality from fantasy) "comes and goes for quite some time": p 453(40). 38 When asked whether it was still "coming and going" at the time of the walk-through, he replied, "I would say so": p 453(45). 39 The video recordings of both the interview and the walk-through show Mr Duncan speaking freely, not in visible distress and capable of appreciating and answering the questions asked of him. When giving his account at the beginning of the recorded interview, he was clearly conscious of the fact that the detectives were writing down his answers and paused regularly to allow them time to catch up. On the face of the material, it was open to a jury to accept the truth of Mr Duncan's statements, as recorded in the interview and the walk-through. It was also open to the jury either to disregard or reject his apparent absence of recollection at the trial. 40 To overcome the real possibility that the jury would be satisfied beyond reasonable doubt of the truth of Mr Duncan's interview and walk-through evidence, the appellant had available three courses. One was to identify objective facts which were inconsistent with Mr Duncan's account, a second was to identify internal inconsistencies in his account, and a third was to suggest that it was simply not possible to be satisfied beyond reasonable doubt that Mr Duncan was describing what in fact he had seen, rather than what he had imagined he had seen, whilst under the influence of drugs. The force of the last challenge was not directed solely to his state of mental health at the time of the interview or the walk-through. It also concerned the time that he gave his statements to the police, it being suggested that those accounts were based, in part or in whole, on what he had imagined, rather than what he had seen, although the distinction was no longer drawn by him in his own mind. 41 The submissions for the appellant in this Court identified one inconsistency in the evidence given in the walk-through. It was pointed out by an officer standing on the steps of 19A that he could not have seen the appellant, her partner and brother at the point at the top of the driveway, at which Mr Duncan claimed to have first seen them. The submission stated, correctly, that he "changed his account" to say that he had "walked out a bit". The complaint was true, but it related to a matter of detail. The walk-through was a somewhat clumsily organised affair, with Mr Duncan describing where he and others were at particular times, and Detective Keighran directing police officers to stand or move as Mr Duncan indicated. The point of detail was not to be disregarded, but it was not treated as significant during the trial and should, if significant, have been the subject of a request in relation to the summing up. 42 In terms of objective facts, the submissions on the appeal placed some weight on the fact that the whole incident took place in the dark and that there was limited lighting available from the windows of the houses. It was said to be "implausible" that Mr Duncan could have seen what he claimed to have seen, accurately and in detail. That complaint had more force in respect of the earlier stages of the events of the evening, than in relation to the actual fight, in which Mr Duncan was involved. Further, the evidence of the young man, THN, although he did not see the stabbing or the knife, and although further away than Mr Duncan, was consistent with Mr Duncan's evidence in the sense that he was able to see and describe aspects of the fighting, particularly the scuffle involving Mr Marrett, Mr Duncan and Jamie Hughes. It is also inconsistent with the supposed difficulty to see in the darkness, upon which the appellant sought to rely, that according to THN, the appellant had seen him and called on him to come and help, a demand which he had ignored. 43 Objective inconsistency was sought to be established in relation to the medical evidence concerning Mr Durrant's injuries. The medical evidence, it was submitted, did not indicate that Mr Durrant had been kicked repeatedly by his assailants, as asserted by Mr Duncan. Further, the medical evidence was said to support the view that there were defensive wounds on the deceased, suggesting that he was attacked, at least in part, from in front. 44 The picture to be derived from the medical evidence was not entirely clear. Dr Langlois conducted a post-mortem examination. His evidence in relation to the direction of the fatal wound was consistent with the description of the stabbing recounted by Mr Duncan and was in the following terms (Tcpt, 19/03/09, p 471): "It's obviously from the back going towards the front but of course also going downwards towards the feet and also towards the midline of the body. So you can see the wound had or the blade has entered on the right side of the back of the chest, it's then going down towards the feet roughly going down towards the heart, so towards the midline and to the chest." 45 Dr Langlois also noted a number of other incisions to the left side of the face and neck, of which one appeared to have been caused by a cutting implement. All of the scratches and the cut were superficial. There were also grazes on the face which could have been caused by a blow from a blunt instrument or a fist. Further, there was a cut on the back of the left forearm which could have been caused by a knife and a puncture wound on the left hand: Tcpt, pp 476-477. Dr Langlois described these as "defensive-type injuries of a type typically sustained when a person tries to wield [ward?] off an attack by a knife, they use their hands to try and deflect the blade or as a reflex action, people try and catch the blade". He agreed that a number of cuts could result from a single lunge: Tcpt, p 480. 46 Dr Langlois was further asked in cross-examination (p 484(40)): "Q. … Nothing consistent with a number of people kicking this man at a time immediately prior to wound number 1 that you have referred to, is that right? A. Yes, there is certainly nothing to indicate that. Now, of course, it is possible for a person to be attacked in the way you say, kicks or blows, without bruising occurring." 47 These matters were very much issues for the jury to resolve. On his own account, Mr Duncan only witnessed the deceased being kicked for a couple of seconds, prior to which he had been wrestling with Mr Marrett on the ground and not observing the fight involving the deceased. (Mr Marrett said he was not able to get up until after the stabbing had occurred, but that may have been because of the acts of Mr Hughes and not the continued involvement of Mr Duncan.) 48 In his record of interview, Mr Duncan was clear that the appellant was carrying a knife when she followed Messrs Durrant and Marrett down the driveway towards the deceased's house. He also stated in his lengthy record of interview that he saw the appellant stab the deceased with the knife from behind: Q260, Q288, Q312, Q317, Q319, Q320. His description in this respect was consistent with the description of the wound given by Dr Langlois. 49 The inconsistency between the evidence of Mr and Mrs Cross, who heard a woman, which it may be inferred was the appellant, threatening to stab someone "in the eye" and the evidence of Mr Duncan that she was threatening to stab Mr Durrant "in the neck" has already been noted. 50 There was also a discrepancy as to what Mr Duncan had said immediately after the stabbing, when he had rushed back into the house at 19A, gone into the bedroom and demanded that one of Mr Clothier and Ms O'Hara drive him home. In her evidence in chief, Ms O'Hara said that he was "screaming loud" and that when she asked him why he just said "Take me home, I'll take your car anyway, I'll smash your car up": Tcpt, 19/03/09, p 498(10). When asked whether Mr Duncan had explained why he wanted to be taken home, she said that Duncan told her "He had an argument or something, that there was a fight …". 51 In cross-examination by counsel for the appellant, a passage was put to her from a statement to the police, which she had apparently made later on the day of the incident, in which she had said (Tcpt, 19/03/09, p 509): "Wayne said, 'What's happened?' Adam was saying 'Steve stabbed someone across the road at Greg's house'. I jumped in and started hitting the guy with Steve, let's go, let's go, let's go." 52 When the passage was read to her, counsel said "Alright?", to which she responded 'Yes': Tcpt, p 509(45). 53 In his record of interview, Mr Duncan referred to the bedroom conversation on more than one occasion, basically confirming that he had said that somebody had got stabbed and that he wanted to be driven home, but without suggesting it was Mr Sotiropoulos who had committed the stabbing: see Q58 and Q367. He gave a similar account during the walk through: p 36.5. 54 In his interview Mr Duncan referred to the appellant as "Steve's girlfriend". It is also possible that there was mention of "Steve" during the conversation, because Jamie Hughes had not come back into the house, but had gone up to "Steve's place". 55 Mr Clothier, in his evidence in chief denied that Mr Duncan had given a reason why he wished to leave, after the incident, which he, Clothier, had not seen: Tcpt, p 517. He did not confirm Ms O'Hara's account as to the fact that there had been a stabbing and that "Steve" had stabbed someone. He was cross-examined by counsel for the appellant, on the basis of his statement to the police, in which, again, he had merely said that Adam Duncan "demanded that I take him home" and that he "looked very worried at that time": Tcpt, p 521(25). It is by no means clear that Mr Duncan told them that Steve had stabbed the deceased, which was inconsistent with most of the other evidence and was not accepted by the jury, which acquitted Mr Sotiropoulos. 56 There were undoubtedly circumstances which tended to confirm Mr Duncan's account to the police. Thus, the evidence of Mr and Mrs Cross tended to confirm that the appellant was not merely very angry at the response of Mr Durrant to her barking dog, but had threatened to "stab" him. Secondly, there is no doubt that Mr Duncan was involved in the fight with Mr Marrett (in which he was supported by Jamie Hughes) largely in the manner which he described. Thirdly, there is no doubt that Mr Durrant was stabbed in the neck or shoulder, in a manner consistent with that described by Mr Duncan. Fourthly, the knife blade, without the handle, was found, near the scene of the crime, where it must have been dropped by the person who had used it. Fifthly, with the possible exception of the conversation recounted by Ms O'Hara, Mr Duncan's account of what happened immediately following the stabbing appears to have been accurate. 57 Putting to one side Mr Duncan's concessions in cross-examination at the trial that he may have been wrong in almost every respect, there are two aspects of his evidence which required careful analysis by the jury. One was that he had seen the knife in the appellant's hand when she was following Durrant and Marrett down the driveway; the second was that he had seen the appellant stab Mr Durrant. It is possible that Mr Duncan was correct in one of these respects, but not the other. Whichever he witnesses, it is possible that he may have reconstructed the other from that which he did see. What is less plausible is that, correctly knowing that Mr Durrant had been stabbed, he reconstructed both aspects of the evidence inculpating the appellant. The knife was at the scene of the crime and was almost certainly brought there by the appellant, her partner or her brother. It is entirely plausible that she, having threatened to stab the man who had abused her dog, had left the house with a knife. Although it was dark, it seems possible, but unlikely, that if Mr Duncan did see a person carrying the knife, he could not distinguish between the appellant, her brother and her partner. He knew them from previous visits. Further, there appears to have been no mistake in his description of them as the three involved in the confrontation with Mr Durrant. 58 It is of course possible that the appellant took the knife with her from the house but that the knife was subsequently taken from her by either her brother or Mr Sitoropoulos. It seems to have been entirely plausible that one or both of them were seeking to restrain the appellant at the outset, although it is also possible that one or both of them lost his temper in the course of the confrontation. It is far less plausible that one of the men, without the appellant's knowledge, took the knife with him from the house. 59 As explained by senior counsel for the appellant in opening the appeal, the prosecution put its case in two alternative ways. Its primary case, based on the evidence of Mr Duncan, was that the appellant stabbed Mr Durrant. The alternative case was that, whilst not the person who inflicted the fatal wound, the appellant was a party to a joint criminal enterprise to assault Mr Durrant and participated in that enterprise by physically attacking him, being aware that one of the others involved in the enterprise was armed with a knife and contemplating the possibility that the knife would be used with intention to inflict grievous bodily harm. 60 The first part of the appellant's account, as told to police, has been set out above. She accepted that she was "really agro" when she ran down the driveway with her brother and her partner. After a further verbal exchange, she continued (Q97): "And the bloke walked up to my brother and they got in each other's faces and he's hit my brother twice. And then I, the other bloke that was standing on top of the stairs walked down and two young guys, I don't even know who they are, they were bluing with that guy and I thought my brother was punching but he wasn't, he wasn't punching him. He, I didn't know that he had a knife. And then it just finished and we just went up the driveway and my sister-in-law drove my brother, I don't where, but it's to get away because my brother's not allowed there. … I didn't, I didn't know my brother had a knife until we got back up there. And that was it. And then the police came last night, and I, I lied to them cause I didn't, I didn't want to get my brother in trouble." 61 Following the initial account, she was taken through the steps in the evening's events. In describing the scene at the bottom of the driveway, she said (Q304): "And Steve was standing there, and he's gone to pull me back in, then I just pushed him aside and I went running down. By the time I got here they were on the veranda. It was only a couple of steps." 62 Her account was consistent with that of Mr Duncan and others in identifying the second man (Mr Marrett) as getting involved with the two young men from 19A, Messrs Duncan and Hughes. In her interview, the appellant said she was not able to identify them. She continued (Q311): "It was just, like, I went down there and … I said, well come on then, you know, I said, 'Well bring it on'. You know, like, because I just think I'm, you know invincible. And he's, like, you know, fuck off, fuck off, you know, rah, rah, rah. And yeah, it was basically, you know, the same things being said over and over and over again." 63 The further description suggested that her brother had intervened on her behalf and that Mr Sotiropoulos was actually standing a little behind her brother in case Mr Marrett became involved: Q365-Q373. She then described Mr Durrant as walking towards her brother and punching him twice in the mouth with a closed fist: Q397-Q402. She described an on-going fight between Mr Durrant and her brother Frederick and continued: "A He came back towards Fred. Q437 Came back towards him? A Yeah. I don't even think he come back towards Fred punching him. I think he went to go and attack him. Q348 Yeah. And what happened then? A Fred either punched him or stabbed him, whatever he did cause I didn't know at that point --- Q439 Yes. A --- that he had a knife, I didn't know until I got back to my house." 64 The appellant denied hearing any male yell "I've been stabbed, call an ambulance": Q592. She also denied that she knew that Mr Durrant had been stabbed until her brother told her that he had stabbed him, back at her house. She believed that her brother did not have the knife with him when he came back to the house and thought "he just dropped it": Q485-Q486. She was asked whether she had asked Frederick that or whether it was something she thought, but gave no audible reply; she was asked again whether there was any conversation between her and Frederick in relation to where the knife was and said "something was said but I, I can't really remember": Q489. Direction to jury: alternative basis for conviction 65 The primary direction given by the trial judge to the jury with respect to the alternative basis of the appellant's guilt appears in the summing-up at pp 52: "'In order for the Crown to prove that Ms Whitmore is guilty of murder on this basis' – namely, she did not stab him – 'it must prove beyond a reasonable doubt all of the following matters: firstly, that she had a common purpose with Mr Whitmore to assault Mr Durrant'. And again, that really requires her to be jointly fighting with him, with Mr Durrant. If she doesn't do anything physical, this element is not proved. 'That at the time and up to and including the time of the stabbing' – I am sorry, that's wrong. That should be, 'That at some time and before the stabbing'. I wonder if you wouldn't mind correcting that? 'That at some time after entering the common purpose and before the stabbing, she knew that Mr Whitmore had a knife.' In other words, she knows he has got a knife and she either joins or continues in the fighting. And then she is as guilty as he is, providing she understands certain things. 'That Mr Whitmore intentionally stabbed Mr Durrant, intending to cause death or grievous bodily harm'." 66 No complaint is made about that direction. However, the trial judge came back to the alternative basis for conviction at pp 95-96. He commenced by saying that if the jury were not satisfied that the appellant used the knife, "Adam Duncan is out of the picture, because you only get there if you don't accept Adam Duncan". As the Director correctly pointed out on the appeal, that may have been overly favourable to the appellant: it was open to the jury to accept some, but not all of Mr Duncan's evidence. His Honour continued: "One of the things that the Crown is able to use is the evidence of Dr Langlois. Because what that shows is, there was more than one use of the knife. Now, how many other attempted uses of the knife there are we don't know. What we know is, there are a number of injuries that he suffered and it obviously must have taken some time, even if it was a little time. And the Crown says well, you would be satisfied beyond reasonable doubt that she would have seen the knife being used in that situation. So, she would have known a knife was there. Of course, if it is reasonably possible that she was not involved in a physical altercation with Fred, she is not part of a common purpose to assault him and accordingly, even if she saw the knife, unless she was part of that common purpose to assault him, she is not guilty of what Fred did or might have done. But it is some evidence that the Crown is entitled to point to in saying, well, quite apart from the threat, the Crown Prosecutor would say, I ask you to accept that she would have seen Fred using the knife, at least at that time." 67 In substance, the ground of appeal seeks a repetition of the requirement that the appellant must have been aware of the knife and continued her involvement in the common assault, before the stabbing occurred. If her first knowledge of the existence of the knife was when the deceased was stabbed, she could not be guilty of murder or manslaughter resulting from the death. In written submissions in reply, senior counsel for the appellant stated: "The substance of the complaint is that the jury should have been directed to disregard the evidence of Dr Langlois in respect of the alternative basis because, if the appellant first became aware of the presence of [the] knife when it was first used against the deceased, it would not be open to the jury to be satisfied beyond reasonable doubt that, in the unknown period of time between that first use and the stabbing of the deceased in the back, the appellant continued to participate in the common purpose to assault Mr Durrant." 68 In the alternative, it was put that the substance of that direction could have been given, without reference to the evidence of Dr Langlois. 69 There are undoubtedly occasions on which it is appropriate and even necessary for the trial judge to repeat directions given to the jury in the course of a lengthy summing-up. However, there are a number of reasons for concluding that no error was made in this case. 70 First, and most importantly, the concept which is said to have been missing from the later direction was not only the subject of the earlier direction, but was contained in the written document which the jury members had with them at all stages. Secondly, there was no lack of clarity about the document or the earlier direction. The question was rather whether it should have been repeated in the context of a particular aspect of the evidence. Thirdly, no complaint was made by counsel for the appellant at the time, although it is clear that directions generally were carefully considered by the trial judge with counsel and that counsel was given every opportunity to raise matters during the course of the trial and summing up. 71 In these circumstances, I would grant leave, pursuant to r 4 of the Criminal Appeal Rules, to allow the ground to be argued, but would reject the challenge to the conviction based on this ground. Unreasonable verdict 72 On the primary case for the prosecution, the appellant was guilty of murder because she wielded the knife which inflicted the fatal wound. 73 That case, counsel submitted, depended upon acceptance of the statements of Mr Duncan, in his interview with police and in the course of his walk-through with the police at the scene of the crime. Counsel sought to identify a number of respects in which the evidence of Mr Duncan was said to be an unsatisfactory basis for a conviction. The failure to have a reasonable doubt as to the prosecution case based on that evidence, it was submitted, rendered the conviction unreasonable, or one which could not be supported having regard to the evidence, within the meaning of that terminology in s 6(1) of the Criminal Appeal Act. 74 The complaints as to unreliability, inconsistency and implausibility have been addressed above. Such matters needed to be carefully addressed by the jury, and no doubt were. Whether they led the jury to the conclusion that the appellant administered the fatal blow is not known. 75 Having viewed the video-recording of the interview and of the walk- through, with the assistance of the transcript, I would have been prepared to accept the key elements in Mr Duncan's evidence, namely that he saw a knife in the appellant's hand as she came down the driveway and that he saw the appellant stab the deceased. I would not uphold the challenge based on the first alternative. 76 The second alternative was said to involve a rejection of Mr Duncan's evidence. On that basis, the appellant submitted, there was no material which would allow a finding beyond reasonable doubt that the appellant became aware that her brother was armed with a knife, prior to the infliction of the fatal wound or, if there were some such short period of time during which she had that knowledge, that she continued to participate in the attack on Mr Durrant having acquired that knowledge. 77 In my view that submission is based upon the fallacy that the jury would, if it rejected Mr Duncan's evidence as to the appellant wielding the knife, also reject his evidence in other respects. The evidence that the appellant had threatened personally to stab Mr Durrant for abusing her dog was given not only by Mr Duncan, but also by Mr and Mrs Cross. The appellant herself stated to police that she was "agro" when she left her house. It may readily be inferred that one of the three members of the household who followed Mr Durrant and Mr Marrett down the driveway, carried a knife. There is significant evidence supporting the view that Mr Sotiropoulos was seeking to calm the appellant down, both near their house and when they reached the house where the deceased was living. It would be quite inconsistent with such conduct for Mr Sotiropoulos to have taken a knife with him. It is possible that Frederick Whitmore armed himself before leaving the house, but neither the evidence of the appellant, nor that of Mr Duncan suggests that he was in such an aggressive mood as to arm himself with a lethal weapon, at that stage of events. It is, of course, possible that both the appellant and her brother took knives, although that seems implausible. No second knife was ever identified as having been involved in the attack. It is also possible that Frederick Whitmore took the knife from his sister in the course of the confrontation. 78 Although in her police interview, the appellant denied knowledge of her brother's possession of a knife until they returned to the house, she was unable to give any explanation as to how she became aware of that fact when they reached the house, nor as to how she came to volunteer the remark that he must have "dropped it" after it was used. 79 The evidence of Mr Duncan included the proposition that both her partner and her brother were seeking to restrain the appellant, while she was coming down the driveway. That detail is, in effect, confirmed by the appellant's own evidence. Assuming that there may have been doubts about parts of Mr Duncan's evidence, I see no basis to doubt the truth of that aspect of the evidence. Further, the fact that the appellant was threatening to "personally stab" the man who has abused her dog, being credible and consistent with the evidence of Mr and Mrs Cross, also provides a basis for the inference that she was carrying a knife. The quite precise nature of the threat renders plausible the proposition that either she was armed with a weapon, or that one of her companions had a knife, to her knowledge. It would also be consistent with the verbal threat that she had waved the knife about as she came down the driveway. The inference that she intended actually to use the knife is a different matter: the relevant fact for the purposes of this ground is that there was evidence upon which the jury could conclude that she had knowledge of the presence of a knife before it was actually used in the fight. 80 Accordingly, although one may accept the argument that had she discovered the existence of the knife only during the fight, even before the fatal stabbing, there was a lack of evidence sufficient to demonstrate beyond reasonable doubt that she remained a party to the violent enterprise thereafter, the jury's verdict could well have been based upon earlier knowledge of the presence of a knife. Once the premise underlying the submission is rejected, the challenge itself should be rejected. 81 It follows that, on either basis on which the prosecution case was left to the jury, a jury could reasonably have convicted and the conviction would have been supported by the evidence. 82 In the course of submissions, there was discussion as to the legal basis upon which the challenge of an unreasonable verdict, or one unsupported by the evidence, should be approached. Counsel's submission was based on the following proposition taken from M v The Queen [1994] HCA 63; 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 83 It is true that their Honours proceeded in the next sentence, stating that the passage set out above (perhaps without the first sentence quoted) was intended to provide "authoritative guidance to courts of criminal appeal" in place of earlier statements of principle. Nevertheless, on the previous page, their Honours had stated the matter in the following way (p 493): "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." 84 Further, the authoritative statement is formulated on the basis that the appellate court, having considered the whole of the evidence, will experience a doubt and will then consider whether the jury had an advantage over it which was capable of resolving the doubt. That approach may be adapted to some cases, but is not necessarily the only available approach. For example, in this case there was evidence, which, if accepted, was sufficient to establish the prosecution case beyond reasonable doubt. The question was whether the evidence should be accepted, in part or in whole, and if in part, which parts. In that regard, the importance of the role played by the jury is relevant. The first sentence set out in the preceding paragraph from M v The Queen was cited with approval in this respect in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [25] (Gleeson CJ, Hayne and Callinan JJ). Further, as noted in the other joint judgment (of McHugh, Gummow and Kirby JJ) at [49]: "In that context, and against the background of the tradition of the jury trial over the centuries, the setting aside of a jury's verdict is, on any view, a serious step. Hence, it is a step that assigns to the words 'unreasonable' or '[un]supported' in s 6(1) of the Act a strictness of meaning that, in isolation or in other contexts, those words might not enjoy." 85 Their Honours continued at [50]: "The second contextual indication of what s 6(1) of the Act is driving at is given by the reference to the demonstration, 'on any other ground whatsoever', of a 'miscarriage of justice'. These words suggest that the kind of 'unreasonable' verdict or verdict that 'cannot be supported, having regard to the evidence' with which s 6(1) is concerned is one that leaves the appellate court believing that, notwithstanding the verdict, there has been a 'miscarriage of justice'." 86 Senior counsel for the appellant put to this Court the proposition that it was in as good a position as the jury to determine the truthfulness and reliability of the evidence. However, that is not entirely so. Mr Duncan gave evidence at the trial, at some length. He was cross-examined by all parties. In parts, there was a degree of ambiguity as to whether his answers to questions concerned the recollection of events, the recollection of stating things to the police, or his absence of recollection both at the committal hearing and in the present. Further, the jury may have been able to form a view, which this Court cannot do, as to the truthfulness of some of his denials of current recollection. Thus, it was a matter for the jury to assess whether his evidence as to the effects on him of alcohol and other drugs were matters which were operating when he spoke to the police shortly after the traumatic events of the night of 26-27 January 2007. It was undoubtedly open to the jury to form the view that he was both a reliable and credible witness of the events, when he gave his statements to the police, and that his answers in evidence at the trial, even as to the effects on him of the drugs, were not to be accepted as determinative of his reliability in January and February 2007. 87 Taking account of the proper role of the jury in this regard, I do not harbour a doubt of the kind explained in M and MFA. I would reject the ground of appeal based on unreasonable verdict. Director's appeal against sentence 88 The second appeal in this matter is brought by the Director against the allegedly manifest inadequacy of the sentence, pursuant to s 5D of the Criminal Appeal Act. The appeal against conviction having been dismissed, the Director's must be addressed. (It is convenient to refer to Ms Whitmore below as "the offender".) 89 As the trial judge noted, the crime of murder carries with it a maximum term of life imprisonment, together with a standard non-parole period of 20 years imprisonment for a case in the middle of the range of objective seriousness: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), ss 54A, 54B and the Table to Div 1A of Pt 4, item 1; judgment on sentence, R v Whitmore [2009] NSWSC 520 at [35]. His Honour imposed a sentence of 14 years imprisonment, including a non-parole period of 10 years imprisonment. The sentence was backdated for a period of four months and nine days to accommodate two periods of pre-sentence custody relevant to the crime for which she was being sentenced. 90 His Honour's description of the facts surrounding the death of Mr Durrant, as relevant to the offender's case, were set out in the judgment at [1]-[21]. This statement included a reference to conflicting evidence on a number of issues. Broadly speaking, the facts as found by the trial judge, and relied upon by his Honour in sentencing the offender, were as follows: "35 … In my view, Katrina's involvement in this offence was an impulsive act of fury at what she perceived to be an attack upon her pets which were, I suppose, just doing what they had been trained to do. As I have said, I do not accept that she had a knife although it is quite possible that she did. I do not accept that she inflicted the lethal wound. She was aware that Frederick had a knife and that he might use it intentionally to cause grievous bodily harm. I do not believe that she intended that grievous bodily harm should be caused let alone that anyone should die. Her involvement was without any reflection and probably represented an immediate and spontaneous response of rage in a situation where the rapidity of events gave little opportunity to step back. In my view, this is a case the gravity of which falls significantly below a case in the middle of the range of objective seriousness. 36 Furthermore, having regard to her relatively young age and relatively trivial criminal history, she does not represent a danger to the community which requires any special emphasis being given to the need for personal deterrence. Her conduct was that of self-indulgent, stupid anger in which she became involved in the murder of another human being whose actions, if possibly somewhat offensive, could not possibly have justified any violence, let alone that to which he was ultimately subjected." 91 The first complaint made by the Director in respect of the inadequacy of sentence was that the trial judge "failed to properly assess the objective gravity of the offence": ground 1. This formulation adopts a conventional, but misleading description of the circumstances of the commission of the offence as "the objective circumstances". These circumstances include the state of mind of the offender: the point of distinction is between those factors and matters constituting personal characteristics of the offender, which may well involve circumstances which, on the other hand, could properly be described as "objective": see Einfeld v Regina [2010] NSWCCA 87 at [73]. 92 The ground of appeal, stated in such broad terms, appeared to engage the unpromising contention that the Court should re-evaluate the seriousness of the offence, on the basis of facts and inferences found by the trial judge: cf Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ). However, in his written submissions, the Director appeared to challenge the underlying factual findings. Thus, the submissions stated: "It can be accepted that the [offender's] conduct did not involve pre-mediation and involved a degree of spontaneous response but it needs very little thought to realise that the threat to stab someone and to run out with others into the night to confront someone, knowing that her brother was armed with a knife and having adverted to the possibility that grievous bodily harm might be inflicted was gravely dangerous conduct. It was in such a situation that she encouraged her brother to attack the deceased." 93 In sentencing an offender, a trial judge is required, in the absence of agreement, to find facts: R v Harris [1961] VR 236; R v Isaacs (1997) 41 NSWLR 374 at 378B (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). Where a case has been left to a jury, the trial judge will be bound by "those facts necessarily found by the jury in reaching their verdict of guilty": R v Sandford (1994) 72 A Crim R 160 at 194 (Hunt CJ at CL, Smart and Studdert JJ agreeing). However, where, as here, alternative bases of conviction were available, the facts on which the jury convicted may not be clear and the sentencing judge will need to find relevant facts, it no longer being treated as appropriate practice to interrogate the jury. Further, as stated by this Court in Isaacs at 378D-E: "4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris . However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency …." 94 The offender submitted, correctly, that his Honour did not make any finding that she knew that her brother was armed with a knife when she ran out of the house. (Although his Honour referred to it being "quite possible" that she also had a knife, it may be assumed that he was not satisfied of that fact beyond reasonable doubt: the possibility was irrelevant.) Rather, his Honour appears to have accepted that she must have "adverted to the possibility that Frederick might (at least) intentionally inflict grievous bodily harm" (at [20]) and that at a time when she was aware that he had a knife "she was encouraging him by way of herself attacking or otherwise encouraging him to attack Mr Durrant": at [21]. 95 The aggravating circumstances of the event were, as the Director noted, that the offence was committed in company and involved the use of a knife against an unarmed man: Sentencing Procedure Act, s 21A(2)(c) and (e). It is also true that those factors were not expressly referred to by the trial judge in sentencing the offender. On the other hand, an assessment of the seriousness of her conduct in either encouraging the men, or maintaining her own involvement in the fracas with Mr Durrant, knowing that her brother had a knife, is a matter of some nicety. His Honour was entitled to conclude that the offender did not intend that Mr Durrant should be killed or suffer grievous bodily harm, nor that she believed that her brother had such an intention. There is no basis established for interfering with his Honour's findings with respect to her state of mind and knowledge. That course would entail this Court being satisfied beyond reasonable doubt of certain facts not found by the sentencing judge. While such a course may no doubt be open in principle, absent some clear failure by the sentencing judge to advert to a matter which appears to have been clearly established on the evidence, or not to have been controverted, the cases in which this Court would so intervene must be rare indeed; this is not one. 96 The Director also referred in his submissions to the fact that there is "no presumption that murder resulting from reckless indifference to life is less culpable than murder resulting from specific intention": par 25. He referred to R v Holton [2004] NSWCCA 214 at [59]. Accepting that there was no premeditation or specific intent on the part of the offender, it would also require a finding adverse to the offender to conclude that her state of mind involved reckless indifference to life. Again, such a state of mind appears to have been inconsistent with the view taken by his Honour. The basis for such interference is not made out. 97 Thirdly, the Director submitted that his Honour failed to consider the significance of "the very triviality of the conduct" which caused the offender to react "in such an extreme manner and [with such] tragic consequences": at par 27. 98 His Honour did not accept that Ms Whitmore had a knife in her hand when she left her house: in that respect, he accepted the unchallenged evidence of her brother's partner, Ms Pullen who said that she was not carrying anything: at [9]. Although his Honour made no finding as to the precise time at which she became aware of her brother having a knife, it appears to have been accepted as being in the course of the fight. His Honour did not find that her brother was manipulated by her, or otherwise acting under her influence. Such a finding would not have been a self-evident inference from the facts, as her brother was nine years older than she. There was no evidence which would have supported such a finding. Although it may be true, as noted by the High Court in GAS v The Queen [2004] HCA 22; 217 CLR 198 at [23] that a "manipulative or dominant aider and abettor may be more culpable than a principal", that was not this case. 99 On the facts as found, Ms Whitmore did not carry the knife to the scene of the stabbing; she did not intend that it should be used to inflict grievous bodily harm or death; she did not encourage whoever used the knife to take that step. Her culpability depended upon her role in responding to the abuse of her dog and her conduct in continuing the physical confrontation with Mr Durrant, at a time when she knew that her brother had a knife and was aware of the possibility that it might be used to inflict grievous bodily harm. These circumstances supported the finding by the trial judge that although the crime was one of murder, there were reasons to depart from the standard non-parole period. The first ground of the Director's challenge should be rejected. 100 The remaining grounds were that the trial judge gave insufficient weight to (a) the need for personal and general deterrence and (b) the need to protect society, and (c) the trial judge failed to take into account Ms Whitemore's prior convictions. 101 Dealing first with (c), the specific matter relating to prior convictions, counsel for the Director contended that some greater weight should have been placed on the fact that Ms Whitmore had prior convictions, not merely for supply and possession of a prohibited drug, but also for assault and damage to property. Accepting that these were of far lesser seriousness than the present crime (and had not resulted in custodial sentences), he argued that nevertheless they should not have been dismissed as entirely irrelevant. 102 While it is not in doubt that they were given little if any weight in the assessment made by the trial judge, at [25], his Honour was unaware of their circumstances, although some aspects of the offences will be noted below. Further, the assault for which Ms Whitmore had been placed on a bond for a period of 12 months, under supervision of the Probation Service, dated from July 2003. When considering the adequacy of the sentence of 10 years mandatory custody, it is understandable that his Honour gave no significant weight to the earlier history of minor offending. 103 So far as the general considerations are concerned, the primary complaint rested on two circumstances. One was his Honour's reference to psychometric tests which were said to disclose that the offender had "inadequately developed personality resources for containing drive and impulse, made worse by substance abuse" and had "a mild anger pathology which makes her likely to act inappropriately though generally she can control her anger": at [27]. His Honour noted the assessment of a moderate potential for recidivism but approached with "considerable caution" a prediction in relation to the likelihood of her again engaging in serious violence. 104 That discussion was followed by the comment in his Honour's conclusions that "having regard to her relatively young age and relatively trivial criminal history, she does not represent a danger to the community which requires any special emphasis being given to the need for personal deterrence": at [36]. 105 These remarks must be viewed in the context of the offender's personal circumstances. In relation to the offending, his Honour took into account that the prior assaults took place when Ms Whitmore was 20 years of age and said that she had been defending herself from assaults from her then partner: at [25]. She had left school at the age of 16 and, having lost her employment, was, she said, "ejected from home". She reported that she had "stayed with older brothers and at times with friends for some years": at [26]. She had a daughter aged eight, who must have been born when she was 18 years of age. Her relationship with her daughter's father ended when, after four years, he died from a drug overdose: at [26]. His Honour continued at [27]: "Following the death of her first partner she became very distressed and was diagnosed with depression but did not comply with taking her antidepressant medication." 106 The sentence, given the standard non-parole period for the offence, was undoubtedly lenient. However, the variability of the factors which may be relevant in such a sentencing exercise make it difficult to determine that the leniency was so great as to demonstrate manifest inadequacy, requiring the intervention of this Court. 107 There is a further factor which may be relevant to the Court's discretionary power not to intervene in such a case. That concerns the sentence imposed by his Honour at the same time, on her brother, Frederick Whitmore. Mr Whitmore had obtained a separate trial from his sister and Mr Sotiropoulos. He pleaded guilty to manslaughter and was sentenced to a non-parole period of four years with a balance of term of 2.5 years. This Court has been informed that there is no challenge by the Director in relation to that sentence. The plea of guilty to manslaughter was accepted by the prosecution on the morning of the verdict against the offender, but before the verdict was entered. The agreed facts in relation to Mr Whitmore included the acceptance by the prosecution that he had not inflicted the fatal wound. 108 No question of parity arises, manslaughter being a lesser offence and involving a less serious mental element. Further, the offence of manslaughter, being so variable in its circumstances, does not carry a standard non-parole period. Although Mr Whitmore pleaded guilty, he did so at a relatively late stage and received a discount "in the order of slightly over 10 percent": at [39]. These factors undoubtedly warranted a significantly higher sentence being imposed upon Ms Whitmore (with a non-parole period of 10 years, as compared with four). On the other hand, it is not possible entirely to disregard the fact that only one blow was struck, brother and sister were both involved in the confrontation with the deceased, but that neither was found to have struck the fatal blow. These considerations have a bearing upon whether this Court should intervene to increase the already significant disparity in the sentences. 109 In all the circumstances, this is not an appropriate case for this Court to intervene. Accordingly, the Director's appeal against sentence should be dismissed. Orders 110 I propose the following orders: (1) In the appeal of Katrina Whitmore – (a) extend time to seek leave to appeal; (b) grant leave to challenge the directions to the jury; (c) dismiss the appeal. (2) In the Director's appeal against sentence – dismiss the appeal. 111 JOHNSON J: I agree with Basten JA. 112 ROTHMAN J: I agree with Basten 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. 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