Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carney v R; Cambey v R [2011] NSWCCA 223 Hearing dates: 22 September 2011 Decision date: 20 October 2011 Before: Whealy JA James J Hoeben J Decision: In each appeal, the appeal is allowed and the appellant is to have a new trial. Catchwords: CRIMINAL LAW - murder - alternative verdict of manslaughter - joint trial - issue as to whether the accused were present - should manslaughter have been left to jury - miscarriage of justice - conduct of counsel in not asking manslaughter to be left. CRIMINAL LAW - murder - alternative verdict of manslaughter - not left to jury - meaning of "open on the evidence" - evidence available to support verdict of manslaughter rather than murder - error of law - application of Rule 4, Criminal Appeal Rules - leave to appeal required - appellants lost real chance of being found not guilty of murder but guilty of manslaughter. CRIMINAL LAW - murder - alternative verdict of manslaughter - not left to jury - proviso to Criminal Appeal Act 1912, s 6 - test to be applied - nature of error to be taken into account - analysis of High Court decisions post Weiss v R. Legislation Cited: Criminal Appeal Act 1912 ss 4, 6 Criminal Appeal Rules r 4 Cases Cited: R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [46], [99], [101] Gilbert v R [2000] HCA 15; 201 CLR 414 at 416-417 per Gleeson CJ and Gummow J, 434 per Callinan J Gillard v R [2003] HCA 64; 219 CLR 1 at 14-15 per Gleeson CJ and Callinan J, 15 per Gummow J, 34-35, 40 per Hayne J Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [35] - [36], [39] - [45] Pemble v R (1971) 124 CLR 107 per Barwick CJ at 117 - 118 R v Abusafiah (1991) 24 NSWLR 531 at 536 R v Wilson (2005) 62 NSWLR 346 at [20] DJS v R [2010] NSWCCA 200 RWB v R [2010] NSWCCA 147 Kessing v R [2008] NSWCCA 310; 73 NSWLR 22 Cesan v R [2008] HCA 52; 236 CLR 358 AK v State of Western Australia [2008] HCA 8; 232 CLR 438 Gassy v R [2008] HCA 18; 236 CLR 293 Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 at [107] - [108] Darwiche v R [2011] NSWCCA 62 at [170] Carlton v R [2008] NSWCCA 244; 189 A Crim R 332 at 345 Darkan v R [2006] HCA 34; 227 CLR 373 Gassy v R [2008] HCA 18; 236 CLR 293 at [16] - [17] Green v R (1971) 126 CLR 28 at 34 Rafael Cesan v R [2008] HCA 52; 236 CLR 358 at [96] R v Nguyen [2010] HCA 38; 85 ALJR 8 at [50] Blackwell v R [2011] NSWCCA 93 at [50], [55] Category: Principal judgment Parties: Todd Carney (Firs Appellant) Luke Joseph Cambey (Second Appellant) Crown (Respondent) Representation: S Odgers SC (First Appellent) S Hanely SC (Second Appellant) W J Abraham SC (Crown) Legal Aid Commission (First Appellant) O'Brien Solicitors (Second Appellant) Director of Public Prosecutions (Crown) File Number(s): 2009/11701 2009/12114 Publication restriction: Nil Decision under appeal Jurisdiction: 9111 Citation: [2010] NSWSC 369 Date of Decision: 2010-04-30 00:00:00 Before: Fullerton J File Number(s): 2009/11701 2009/12114 Judgment An overview - a man is killed 1THE COURT : There are before the court appeals by two men who were found guilty by a jury of the murder of Derrick Reid ("the deceased"). The two men (whom I shall refer to as Carney and Cambey respectively) were later sentenced by her Honour Justice Fullerton as follows: Carney - 22 years imprisonment with a non-parole period of 16 years and 6 months. Cambey - 18 years imprisonment with a non-parole period of 14 years and 6 months. 2There was a third man involved in the assault upon the deceased, but his trial was separated from the joint trial of the appellants and he was later found not guilty by Fullerton J following a judge alone trial. 3The deceased lived in a unit in Cartwright and for some years had sold or supplied cannabis, although it was his custom only to deal with people he knew or who were introduced to him. On the evening of Saturday 28 January 2006 while at the home of Jacob Epenian, Carney, Cambey and the third man, together with a friend, Joel Grant, agreed between themselves to obtain some cannabis by approaching the deceased. They were driven to his unit by Grant, who parked nearby and waited in the car. The other three left the car together, and headed towards the deceased's unit. Grant did not notice them carrying anything in the way of weapons. 4The Crown case was that they went to the deceased's unit intending to obtain cannabis from him, either on credit or pursuant to a threat of violence. The Crown case was that after entering the unit, the men participated in some type of assault on the deceased, whereby he was repeatedly hit about the head with a piece of metal, probably a bar taken from a socket set, and was kicked or stomped on. Ultimately, the men left the unit without any cannabis, returned to the car and were driven away by Grant. 5Shortly afterwards, the deceased, with a towel wrapped around his head and holding a can of beer, went to another unit seeking assistance from its occupant, Anthony Bilson. He was bleeding, so Mr Bilson called triple 0 for an ambulance. The deceased told Bilson that three men had "home invaded me" and referred to his having been hit over the head. He told ambulance officers they used a "baton" and a "taser gun" on him. The deceased was treated at the scene for his injuries and taken to Liverpool Hospital. He died later that day as a result of the head injuries. The cause of death was diffuse brain swelling, secondary to a closed head injury, a skull fracture. 6The police had very little to go on in their investigation. The metal bar used to inflict a number of the injuries was found and collected later by Bilson outside Unit 6. There was no forensic evidence that the police were able to use to identify the deceased's assailants. Some time later, the police posted a reward for information relating to the death of the deceased. Sean Berriman, who knew Carney and Cambey, was motivated to tell the police that he had some information to impart that might be useful to the investigation. He had heard on the radio of the reward being offered for information about the death. He communicated anonymously with the police for some months before identifying himself and ultimately providing a statement. He gave evidence of a conversation he had in February 2006 in the company of Carney, Cambey, the third man, Grant, and another person. In this conversation, Cambey discussed what had happened to the deceased and said:- Me, Todd and Nuggy went to go to do him over and we killed him... We went and knocked on his door and when we opened it, we went in to do him over... he must have had something to live for, because every time we hit him he kept getting back up. Berriman also nominated Grant, Epenian and Carney's girlfriend, Ms Laing, as persons who might have information that could assist the police. 7Cambey was arrested on 17 July 2007 and charged with the deceased's murder. Carney and the third man were arrested and charged on 24 and 18 July 2007 respectively. The course of the trial 8The trial of Carney and Cambey commenced in the Supreme Court in Sydney on 3 February 2010. The prosecution relied on the four witnesses I have identified. Each testified in substance that Carney and Cambey had made confessional statements to them, suggesting their respective involvement in the death of the deceased. There was no forensic evidence to identify who it was who had assaulted the deceased. There was detailed medical evidence however, concerning the nature of the injuries sustained by the deceased. 9The Crown in opening the case had suggested a joint criminal enterprise. However, the case was ultimately left on a much simpler basis. 10The directions given by the trial judge in relation to each man were (in brief) as follows:- To convict for murder, the jury had to find that the particular defendant either inflicted the head injuries with the metal bar, or that he jointly with the other man assaulted the deceased by kicking or stomping on his head. In either case, the assault had to be accompanied by one of the three intentions necessary to found murder: an intention to inflict grievous bodily harm, an intention to kill, or reckless indifference. Alternatively, if the jury were not satisfied that the particular defendant inflicted any of the injuries from which the deceased died, they might nonetheless find the defendant guilty as an aider and abettor. This required findings that the head injuries were inflicted by one or both of the other two men, that the defendant was present, that he knew that the others were inflicting the injuries with one of the requisite intents for murder, and he knew his presence was assisting the others to commit the offence. 11As her Honour put it in the written direction:- Thus, in order to convict X of murder it is necessary for you to be satisfied beyond reasonable doubt that he was either the person or one of the people who inflicted the fatal head injuries, or, by his presence, he aided and abetted the others to inflict those injuries ready and willing to give aid to the person or people actually committing the offence if required. 12The defence case for each of Carney and Cambey was that the allegation of murder could not be proved beyond reasonable doubt. The thrust of the defence case, in each instance, was that neither Carney nor Cambey was present inside the deceased's home when the injuries were sustained by the deceased. Neither man testified at trial. On 18 February 2010, the jury returned with verdicts of guilty of murder in respect of both men. Appeals against conviction and sentence 13Each man has lodged an appeal against his conviction and has sought leave to appeal against the sentence imposed upon him. The sole ground of appeal against conviction in each case is that the trial judge erred in failing to leave an alternative verdict of manslaughter. The trial judge, of course, was not asked to leave manslaughter. This is understandable in the light of the defence case that neither Carney nor Cambey was present at the deceased's unit. In Carney's case, the appeal against sentence is confined to a ground that the sentencing judge erred in failing to take into account considerations of totality. In Cambey's appeal against sentence, the judge is said to have erred in setting a non-parole period above 75 per cent without giving reasons. 14It will be convenient to focus at this stage upon the conviction appeal. In the case of each appellant, the starting point must be the proposition that if manslaughter were not left (and there is no doubt it was not) and should have been left, a wrong decision will have been made on a question of law. Both appellants and the Crown do not dissent from this proposition. In such a case, section 6 of the Criminal Appeal Act 1912 requires this court to set aside the conviction, subject however to the application of Rule 4 where it applies and to the proviso in section 6. The effect of the proviso is that a new trial will not be ordered where the Crown satisfies the court that no substantial miscarriage of justice has actually occurred ( R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [46]; Gilbert v R [2000] HCA 15; 201 CLR 414 at 416-417 per Gleeson CJ and Gummow J, 434 per Callinan J; Gillard v R [2003] HCA 64; 219 CLR 1 at 14-15 per Gleeson CJ and Callinan J, 15 per Gummow J, 34-35, 40 per Hayne J; Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [35] - [36], [39] - [45]). 15Mr Odgers SC, on behalf of Carney, submitted that, even where a trial judge had not been asked to leave an alternative of manslaughter, it must be left if such a verdict was open on the evidence at trial. This, senior counsel said, has long been the law ( Pemble v R (1971) 124 CLR 107 per Barwick CJ at 117 - 118). He submitted that the first question to be determined was whether a verdict of manslaughter was "open" on the evidence (that is, as he put it, whether a case of manslaughter was "viable"). He submitted that, in the trial of his client, manslaughter on the basis of dangerous and unlawful act was "plainly open on the evidence". Senior counsel pointed to the physical act of striking Mr Reid over the head with the metal bar as being "clearly dangerous and unlawful". 16Mr Hanley SC appeared on the appeal for Cambey. Senior counsel supported the submissions put by Mr Odgers. He reminded the court that in Kanaan , a number of propositions derived from the High Court decisions of Gilbert and Gillard , had been extracted and formulated. In particular, he referred to the following:- (a)Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is "viable"); (b)If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - not withstanding that it is not being raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury; (c)If there is evidence to support an alternative verdict of manslaughter and if the judge has not left that issue (for whatever reason) there has been an error of law; (d)Subject to the provisions of the Criminal Appeal Rules, Rule 4, the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. 17In the light of these propositions, Mr Hanley submitted that a jury, properly instructed, would not necessarily have returned a verdict of murder rather than manslaughter. The critical issue, he argued, was whether the evidence at trial was capable of supporting a verdict of manslaughter. Manslaughter on the basis of dangerous and unlawful act was, he argued, "open on the evidence". The act of striking Mr Reid over the head with the metal bar and/or the act of "kicking Mr Reid to the head was clearly dangerous and unlawful". 18In their written and oral submissions, Mr Odgers and Mr Hanley took the court in considerable detail to the evidence before the jury in support of the submission that, in the case of each appellant, a verdict of manslaughter was open - viable - on the evidence. 19The Crown argued that the trial judge did not err in failing to leave the alternative verdict of manslaughter. The Crown submitted that, having regard to the evidence in the trial, there was simply "no viable case of manslaughter reasonably open" which could have been left to the jury. The Crown argued that a manslaughter verdict was not "plainly open" on the evidence and that this was clearly reflected in the manner in which the trial was conducted and having regard to the terms of the summing up. 20It will be necessary to examine in detail the evidence before the trial judge to assess the strength of these competing submissions. However, it is appropriate at the outset to say something about the test to be applied. There is a difference between the appellants and the Crown as to whether the correct approach is to ask whether a verdict of manslaughter was open on the evidence at the trial, as the appellants submitted, or to ask whether it was reasonably open on the evidence at the trial, as the Crown submitted. Mr Odgers SC argued that, in none of the authorities, does the phrase "reasonably open" appear. 21We consider that the correct approach may best be seen from an examination of the High Court's decision in Gillard . In that case, the appellant stood trial with another man (Preston) for the murder of two other men. The Crown case was that Gillard was a party to a plan by which Preston was to kill the men; and that he knew of Preston's intentions to kill them with a gun. When arrested, Gillard claimed that he thought there was only to be a robbery, and he denied knowing that Preston was armed with the gun. At the trial, the judge was not asked to leave manslaughter to the jury. It appears Gilard's counsel, for tactical reasons, opposed the Crown's application for that issue to be left. Gillard was convicted of murder. In the High Court, the appellant and the Crown agreed that, the jury should have been directed as to manslaughter. The only issue on the appeal was whether the proviso should be applied. During the course of the judgments, however, there was some mention of the proper approach to the issue as to whether manslaughter should have been left. 22In a joint judgment, Gleeson CJ and Callinan J examined the evidence before the jury to establish what, if anything, could be gleaned as to the possible state of mind of Gillard in connection with the actions of Preston. Their Honours examined the scope of the doctrine of common criminal purpose and the possible state of mind of Gillard in that regard as a secondary offender. Their Honours noted that the general principle allows for the possibility that a person who intentionally assists in a homicide may be guilty of manslaughter even though the principal offender is guilty of murder. That possibility may arise from a difference in the intention of the two parties. Having examined that possible distinction in Gillard's situation, their Honours succinctly stated (at [26]):- In our view, there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law. 23Hayne J (at [106]), having stated the primary facts, said:- The parties to the appeal were right in contending that it had been open, on the evidence led at trial, for the jury to conclude that the appellant was not guilty of murder or attempted murder but was guilty of manslaughter of the two victims who had died. There was a wrong decision on a question of law and, therefore, unless the proviso ... was engaged, the Full Court was bound to allow the appeal, quash the appellant's convictions and order a new trial. 24Gummow J agreed generally with the observation by Hayne J concerning the principles relating to joint criminal enterprise, and added (at [32]):- In the present case there was, as Hayne J explains, a wrong decision by the trial judge on a question of law in not directing the jury that a verdict of manslaughter was an available outcome. 25The expression "a viable case of manslaughter to be left to the jury" (as stated by Gleeson CJ and Callinan J) is a useful shorthand expression expressing the correct approach to be taken. Similarly, the question is often asked "was manslaughter open to be left". That too is a useful shorthand manner of approaching the issue. While we consider that the correct position is more akin to that urged by the Crown on the present appeal, namely whether a verdict of manslaughter was "reasonably open" on the evidence, we would prefer to state the proper approach (based on Hayne J's statement) in the following terms:- A viable case of manslaughter means that it was open on the evidence led at trial for the jury to conclude that the appellant was not guilty of murder but was guilty of the alternative charge of manslaughter. 26The problem with Mr Odgers' approach is that it is perhaps too wide. It would mean that in virtually every case of murder, manslaughter should be left. Experienced trial judges commonly leave manslaughter before the jury but it is not invariably the case. We would not wish to disturb that situation. For that reason, we propose to approach the issue in each of the present appeals on the basis we have indicated. A summary of the evidence 27It is necessary to turn next to a summary of the evidence relevant to the principal issue raised on the appeal. It will be convenient to start with the medical evidence establishing the nature of the injuries sustained by the deceased. As we have said, the cause of death was diffuse brain swelling, secondary to a closed head injury, a skull fracture. That evidence established:- * There were a number of superficial bruises and areas of discolouration on the body: * A finger was broken * A laceration (number 9) on the left temple. This could have been caused by the metal bar * A laceration (number 10) on the top of the skull that was probably caused by two impacts. It could have been caused by the metal bar (it was more likely to have been caused in that way than by a kick) * Underneath laceration 10, there was a depressed fracture of the skull. This injury indicated "a significant amount of force being applied locally" * A laceration (number 14) on the back right side of the head * Near laceration 14, a skull facture which was not depressed like that underneath laceration 10 * A bruise (number 13) on the back of the head which could have been caused by a kick or a punch Dr Ellis gave evidence that it was not possible to determine the order in which these injuries were inflicted, although he believed that wound 14 may possibly have been inflicted before wound 10. 28The weapon used to inflict the injuries was described as a metal bar approximately 30cm long. This piece of metal had later been found and collected by Bilson from outside Unit 6 where it had apparently been discarded after the assailants left Unit 5. There was a suggestion in the trial that, prior to the arrival of the three men, the bar had been abandoned, with other objects, in a common area in the flats. 29As there was no forensic evidence linking either Carney or Cambey to the assault, the Crown relied on the evidence of four witnesses - Joel Grant, Jacob Epenian, Jessica Laing and Sean Berriman - all either friends or acquaintances of the appellants and the third man. Each of these gave evidence of various confessional statements made by the appellants as to the attack on the deceased. Grant, Epenian and Laing were with the appellants before and after the attack. Berriman was spoken to by the appellants a few weeks after the attack. Both Carney and Cambey were present during these various conversations, with the exception of conversations between Carney and Laing when Cambrey was absent. We shall deal with each of the witnesses separately. Joel Grant 30Mr Grant was the driver of the car and gave evidence that after the decision to obtain cannabis, he drove the three men to Reid's unit and waited in the car. Grant was a user of cannabis and a friend of a person known as Jason. This man had introduced Grant to the deceased for the purpose of his being supplied with cannabis on a regular basis. Grant regularly attended Epenian's home in Lurnea for parties. He gave evidence that on 29 January 2006, just before dawn, he, the appellants and the third man agreed to visit the deceased in order to obtain marijuana. They were trying to organise a "50" (a reference to a quantity of cannabis). As we have said, Grant drove the men in Carney's motor vehicle to the deceased's block of apartments. He saw the three men leave the car and understood they were going to see the deceased. He did not see them carrying anything when they left the car. 31Grant said that when the three returned, they appeared "a bit fidgety". They told him they could not obtain any marijuana. The Crown was granted leave under section 38 of the Evidence Act relative to certain paragraphs of Grant's witness statement, which he agreed was his truthful recollection of the conversation in the car:- Luke said he had nothing. The next thing someone said, "We started bashing him". Then (the third man) said, "We couldn't get into the unit through the door because Derrick was fighting to keep us out". I can't really remember the exact conversation but one of the boys then said that they kept bashing Derrick and that they couldn't knock him to the ground. The boys told me to drive away because people would see them because they made a lot of noise while they were in his unit. I did not see any blood on any of the boys. 32The four then drove back to Epenian's home, where it was agreed they "would not speak about it again". Jacob Epenian 33Mr Epenian testified that in January 2006 he knew the deceased after being introduced to him by Joel Grant, for the purpose of obtaining cannabis. He also knew Carney, Cambey and the third man. He said that in the early hours of 29 January 2006 there was a group discussion which involved the three men and Grant. The discussion related to obtaining some marijuana. The agreement was that the other four would go there, in effect, to endeavour to get some marijuana on credit ("tick up stick"). The four men left and returned about an hour and a half later without any marijuana. 34Epenian said Todd Carney asked to have a shower. He did not notice anything wrong with Carney's clothes. He observed, "they all looked a bit distraught and not much was said at first". About half an hour later, Carney said, "Things didn't go according to plan, it went really bad... they left him in a pretty bad way. Someone said, 'a weapon of some sort... was used repeatedly and that the deceased had said, 'it wasn't going to happen to him, not now and not ever'". 35The Crown was granted leave under section 38 of the Evidence Act relative to certain paragraphs of Epenian's statement:- All of a sudden Todd and Luke started bragging about what they did. Todd said we got there and knocked on the door. The guy next door came out and shit himself and then went back inside. Derrick asked who it was and came to the door and Carney said, "It's Jas' mate". Derrick opened the door and they casually walked into the flat. As they walked in one of them dropped the taser and Derrick turned around and said, "This is not happening to me, not ever". Todd said they he cracked him with a pole and he fell on the bed. He couldn't believe that he got back up. So then Cambey started kicking into him and Todd said that he was cracking him with the pole in the head and he was bleeding and there was blood everywhere. Todd said he kept getting up and that's why they left. Jessica Laing 36Ms Laing was Carney's girlfriend between 2003 and April 2006. She had been at Epenian's home on 28 January 2006 with the others. When she awoke on that morning, she asked Carney where he had been, to which he replied, "We went out - tell ya later". Later that day at her home, Carney was upset and crying. When she asked him what was wrong, he said, "They bashed someone and he thinks it went too far". He said, "it was bad". Shortly after 29 January 2006, she noticed that Cambey had changed his hairstyle from mullet to short. On another occasion, Carney told her that "they went in, then they had a fight, then they left" and "it was bad and the guy was, like kept getting back up and he didn't know what to do". He said that he had "a pole" and "he ran away and threw the pole" and that the victim was "badly injured" from "bashing him". Sean Berriman 37Mr Berriman testified that he was present at a party held at Jessica Laing's house in February 2006. A conversation had taken place between him, Cambey and Carney, during which Carney asked if Berriman knew what had happened about the deceased. Cambey then gave the evidence we have earlier recounted - "(We) went to go do him over and we killed him". He added, "We went and knocked on his door and when he opened it we went in to do him over... he must have had something to live for because every time we hit him he kept getting back up". 38All four witnesses admitted that they were regular users of marijuana, ecstasy and alcohol. They conceded, in general terms, that their memory of the conversations they had had were affected, to one degree or another, by their substance abuse. In Berriman's case, he agreed he first recounted the conversation given during his evidence back in June 2008. This was after the time he had decided to claim the offered reward of $100,000. Submissions as to whether manslaughter should have been left 39Mr Odgers first outlined the way in which the Crown had approached the issue of murder at trial. There, he said, the Crown had primarily argued that the appellant committed murder on the basis that there was an intention to inflict grievous bodily harm. The Crown case was that there must have been an intention to inflict grievous bodily harm "because of the number of blows and the weight of the bar". There were "at least four blows to the head" and that "significant force" was required to fracture the skull. 40Mr Odgers submitted, however, that a number of elements emerged from a careful analysis of the evidence given by the four friends and acquaintances. These included that the three young men went to the deceased's unit to obtain cannabis. All of them had been drinking and using drugs at a party for some hours before this. At some point prior to gaining entry to the unit, the young men must have formed the intention that, if they could not obtain cannabis on credit, they would use the threat of force to obtain it. The evidence was that just prior to entry the appellant, Carney, armed himself with a metal bar, and one of the others had a "taser", probably the third man. Once they had been admitted into the unit, the deceased made it clear that he would not supply cannabis on credit, nor would he allow it to be taken by threat of violence. 41Against that background, Mr Odgers painted a possible scenario that Carney used the metal bar only intending to render the deceased unconscious or otherwise to incapacitate him. In other words, there was a reasonable possibility that there was no intention to cause him really serious harm. It is true that Carney struck the deceased over the head with the metal bar and he fell down. The confessional statements, however, indicate that Carney was "surprised" when the deceased stood up and fought back. The possibility was that the taser was used by the third man and that the deceased was kicked in the head by Mr Cambey and that, at the same time, he was being struck repeatedly with the metal bar to keep him down, but he "kept getting up" and kept fighting. 42Mr Odgers submitted the manner in which the three young men retreated from the unit without taking any of the cannabis in the unit, the way in which the metal bar had simply been dropped on the balcony outside the unit and the statements immediately thereafter to Grant and the others, demonstrated a situation where serious injury may not have been intended. Rather, the altercation had simply got out of hand. Mr Odgers reminded the court that the appellant had been crying later that day, and told his girlfriend, in this context, that what had happened was "bad and the guy was, like, getting back up and he didn't know what to do". 43Mr Odgers argued that there was final support for this scenario in the medical evidence. This was consistent with the deceased being hit with the bar once without a high level of force (causing laceration 9), then being hit with a greater level of force (causing laceration 14 and the fracture near it), then being hit again, twice in succession, with "significant force" (causing laceration 10 and the depressed fracture under it). Mr Odgers argued that these possibilities, reasonably arising on the medical evidence, were consistent with Carney striking the deceased once, intending to render him unconscious, or otherwise to incapacitate him, and then having to strike him again with greater levels of force because the initial blows were ineffective. On this scenario, it was reasonably possible that even the blows with the greatest force (causing laceration 10 and the depressed fracture) may have involved only an intention to incapacitate rather than cause grievous bodily harm. Mr Odgers submitted that overall the medical evidence was consistent with a scenario where Carney, surprised by the lack of effectiveness of the first blow and the deceased's violent response, struck him repeatedly without any precise intention in his mind, other than to stop the deceased from using violence on him, or, at most, to incapacitate him. 44Mr Odgers argued that it was significant, in the context of the picture he sought to paint, that the only other weapon apparently used in the assault of the deceased was a taser gun, a weapon used to stun or disable a person without causing lasting injury. Mr Odgers conceded that the person using the taser may not have had the same state of mind as the person using the metal bar, but at least it gave some support to the proposition that the initial intention of all three young men was to do no more than to incapacitate Mr Reid, without causing him grievous bodily harm. 45Events immediately after the assault suggested, Mr Odgers argued, that the young men were clearly shocked by what had happened. They did not take any cannabis from the flat, even though cannabis was clearly present. 46Mr Odgers asked this court to accept that, having regard to the evidence, a jury, properly instructed, would not necessarily have been satisfied beyond reasonable doubt that Carney formed an intention to inflict grievous bodily harm. In relation to the other state of mind relied on by the Crown at trial, the possibility of reckless indifference, Mr Odgers suggested that this was not a realistic scenario at all, as there was no evidence to suggest that Carney realised it was probable or likely that the deceased would die. (The Crown did not quarrel with this latter proposition). 47Mr Hanley, as we have said, supported the general propositions advanced by Mr Odgers. He submitted, however, that his client was in a much more favourable position than Carney. If his client was the person who had kicked the deceased in the head (but had not been involved in the use of the metal bar) it was necessary, on the Crown case, for the jury to be satisfied that Cambey knew that Carney intended to inflict grievous bodily harm on the deceased, and that he was present and assisting him at the same time. 48Mr Hanley argued that, putting to one side the unreliability of some of the evidence adduced from the four "confessional" witnesses, their evidence demonstrated that when the three men went to the flat, none were apparently armed. It was reasonable to infer that the third man may, however, have had the "taser" with him. There was no evidence that the Cambey was aware of this prior to it being "used" on the deceased. He referred to the evidence that suggested that Carney may have armed himself with the metal bar "spontaneously" about the time the deceased refused to supply the drugs, as it had been probably opportunistically removed from a pile of mechanical equipment deposited by a tenant on the veranda of a nearby unit. 49Mr Hanley said that the scenario that developed was one where, to the surprise of the assailants, the deceased kept getting up and fighting. In whatever order it occurred, the kicking by Cambey and the striking of the deceased by Carney must have happened within a very short timeframe. Their abrupt departure from the premises, without taking any cannabis, was consistent with all three being surprised by the deceased's response, and dismayed that the extent of his injuries exceeded their intended actions. 50Mr Hanley argued that the comments made in the car to Grant immediately after the visit to the flat were quite inconsistent with any of the men having had an intention to kill or to cause grievous bodily harm. They were not consistent with Carney suddenly forming either of the requisite intentions after the three men had gained entry to the flat. 51Mr Hanley argued that it was reasonably possible that Cambey assisted Carney by kicking the deceased, but only with the intention to incapacitate him. He never formed an intention to cause the deceased really serious harm. In any event, the evidence was certainly consistent, counsel argued, with it being reasonably possible that Cambey was assisting by his actions or his presence, but without knowing that the wounds inflicted by Carney were carried out by him with an intention to cause grievous bodily harm. 52Mr Hanley supported Mr Odgers' arguments based on the medical evidence. In particular, he said that there was no evidence when the kick to the head occurred in the chronological sequence of injuries. He accepted that the medical evidence was possibly consistent with the deceased being hit with the metal bar with increasing levels of force. This, in turn, was consistent with the admissions made by Carney or Cambey that the deceased was repeatedly struck to stop him from getting up and to incapacitate him. In that regard, the evidence supported the further reasonable possibility that Cambey assisted Carney by kicking the deceased to subdue him, but never formed an intention to cause him really serious harm. 53Finally, Mr Hanley submitted that a jury, properly instructed, would not necessarily have been satisfied beyond reasonable doubt that Cambey had the requisite intention to be convicted of murder. On the evidence, he submitted, an alternative verdict of manslaughter was a "viable" one. 54The Crown submitted that the scenario painted by both appellants, but particularly that suggested by Mr Odgers, was both fanciful and speculative. First, the Crown submitted that the manner in which the trial had been conducted, leading to the directions given by the trial judge, reflected that a verdict of manslaughter was not reasonably open. In support of this argument, the Crown pointed to the fact that trial counsel for Cambey had conceded before the jury that, whoever assaulted the deceased must have acted with an intention to kill or cause really serious physical injury. The trial judge had referred to this "concession" in her summing up, and gave a direction, as the Crown pointed out, that focussed on the single issue as to whether either of the appellants had been present at the flat when the injuries were inflicted. The selection of this single issue by the parties reflected their mutual recognition at trial that manslaughter was not reasonably open on the evidence. 55Secondly, insofar as reliance was placed on Gilbert and Gillard , the Crown submitted that, in this matter, Carney and Cambey were both in the flat when the injuries were inflicted, and, it might reasonably be assumed, participated in the attack. This contrasted with the situation in both Gilbert and Gillard , where each of those offenders had not been a direct participant in the killing. 56Thirdly, the Crown submitted that it was not reasonably open on the evidence to infer that the appellants intended to render the deceased unconscious or merely incapacitated - short of intending to inflict grievous bodily harm. This could be seen, the Crown submitted, by the nature of the attack, the medical evidence, the crime scene, and the terms of the admissions made by each of the two men. There was no suggestion, for example, in any of the admissions, that they had been there, but had only intended to incapacitate the deceased. 57The Crown argued that the only reasonable possibility emerging from the evidence was that the appellants deliberately armed themselves with the metal bar before entering the unit. Shortly after entry, the deceased, who was obviously caught by surprise and was defenceless, was repeatedly struck about the head with a metal bar wielded with enough force to fracture his skull. During the attack, and after blows with the metal bar had caused him to fall to the ground, Cambey joined in by kicking the deceased to the head. The nature and ferocity of the attack with the metal bar, focussed as it was on the deceased's head, reflected, the Crown submitted, at the very least an intention to inflict grievous bodily harm. The attack was deliberate and sustained, and "there was blood everywhere" as the photographs amply demonstrated. 58Moreover, the Crown submitted, that not only could it be concluded that the injuries were deliberately inflicted with the intention at least to cause grievous bodily harm, those participating in the attack, although not wielding the metal bar, must have known of that intention. It therefore followed that Cambey, by kicking the deceased in the head while he was on the ground, must at least have aided and abetted the other person, well knowing of the relevant intent. 59The Crown placed particular reliance on the confessional statements:- We went in to do him over... he must have had something to live for, because he kept getting back up. And:- Todd said he cracked him with a pole and he fell on the bed. He couldn't believe that he got back up so then Cambey started kicking into him and Todd said he was cracking him with the pole in the head... and there was blood everywhere. 60The Crown disputed both Mr Odgers' and Mr Hanley's arguments as to the meanings to be given to a number of the admissions. Resolution of the principal issue 61We shall deal with each of the appellants separately. There can be little doubt that, had manslaughter been left, Carney may have had a difficult task persuading the jury that if, as it appeared, he had been the assailant striking the deceased with the metal bar, his intention was other than to inflict grievous bodily harm. The number of blows, the heavy bleeding and the increasing force of those blows would be likely to suggest to a jury that, at least at the time the blows were delivered, his intention went well beyond merely incapacitating the deceased. However, as Mr Odgers argued, there was evidence that could possibly point the other way. A number of the confessional statements, and the post-incident reaction of all the men, supported the existence of a situation that had simply spun out of control. That this may have been so could suggest, even in Carney's case, that the scenario painted by Mr Odgers was a reasonable possibility. We would not agree that there was no evidence to support it, as the Crown argued, although we acknowledge the force of the Crown submissions that the jury might well have rejected such a defence case, had it been put. Nevertheless, there was no forensic evidence as to precisely the order in which the blows were inflicted and the men, it appears, fled in some panic without taking any drugs with them. The deceased's behaviour immediately after the attack, and prior to his departure in the ambulance, was also a relevant factor. 62It is important to bear in mind, as both Gillard and Kanaan made clear, that, in an argument such as the present, it is easy to fall into the error of asking whether the evidence that was before the jury was sufficient for them to be satisfied that the offender possessed the intention sufficient to constitute murder. Care must be taken not to reason that the jury's verdict of guilty of murder concludes any consideration of the alternative verdict of manslaughter at a new trial. In a trial where manslaughter has not been left, that may, unless caution is exercised, appear to be the case. The real question that arises is, whether a verdict of murder would have necessarily resulted, had the issues at trial been left on the alternative basis. 63The position of Cambey is somewhat different from that of Carney. We think it can be safely said that the evidence we have recited, insofar as it impacted on the case against Carney, would have permitted a reasonable argument to be presented that either he did not possess an intention to inflict grievous bodily harm upon the deceased or, at the very least, he was not aware that Carney was acting with that intention in mind. This is not to say that a jury, properly instructed, could not have convicted Cambey of murder. But there was, as we have said, a respectable argument that would allow for the possibility of an alternative finding. The confessional statements relied on by the Crown, we accept, may have been sufficient to persuade the jury that murder was an appropriate verdict in the case of each appellant. These statements, however, were only one piece of evidence in the overall mosaic of the prosecution case. Moreover, there were doubts about the reliability and accuracy of the witnesses, particularly Mr Berriman. This extended to the evidence he gave about conversations he had with the appellants at a later time. 64The Crown argument based on the conduct of the trial we do not find compelling. It has some attractions at first blush but it belies the fact that defence counsel, having selected the single issue they thought appropriate for the trial, could hardly abandon it after the conclusion of the evidence. It may be, although this is perhaps speculative, that their attack on the four witnesses had been, in their minds, successful, with the consequence that they were content to see the trial to its conclusion on that one issue. If manslaughter ought to have been left, trial counsel's decision to fight the trial on the basis that neither accused was the assailant cannot disentitle them from raising the point on appeal. It is true that "armchair appeals" are not to be encouraged ( Darwiche v R [2011] NSWCCA 62 at [170]) and we shall give further consideration to this aspect of the matter when considering Rule 4. 65The "concession" made by trial counsel for Mr Cambey may have been simply an advocate's flourish. It was certainly not a concession that Cambey had an intention to kill or to inflict grievous bodily harm. In any event, the Crown accepted, fairly and properly, that even in a single-issue trial where there emerges evidence that would support a reasonable finding of manslaughter, it should be left, and that this is so even where a request to that effect has not been made on behalf of the accused. 66Accordingly, we conclude, albeit with some hesitation in the case of Carney, that it was reasonably open on the evidence led at trial for the jury to conclude that each man was not guilty of murder, but was guilty of the alternative charge of manslaughter. Rule 4 67Rule 4 of the Criminal Appeal Rules is in the following terms:- No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal. Neither counsel asked for manslaughter to be left, and it thus appears that leave is required. Leave to rely on an error to which no objection was taken at the trial will be granted where the appellant can demonstrate that the error led to a miscarriage of justice ( R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson (2005) 62 NSWLR 346 at [20]; R v Kanaan at [99]). 68We conclude that, as the jury were not instructed as to the availability of the alternative verdict of manslaughter, this may have caused each appellant to lose a real chance (or a chance fairly open to him) of being found not guilty of murder but guilty of manslaughter ( R v Kanaan at [101]). The fact that there was an obligation on the trial judge to give such a direction ( Pemble ) is further support for the grant of leave. Thirdly, we consider that there was an obligation on the Crown Prosecutor at trial to remind the judge or bring to the judge's attention the need to consider leaving manslaughter as an alternative verdict. This was not done. 69It has been said that the Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial ( Darwiche at [170]). We would not wish to undermine this proposition. Where, however, the failure to leave the alternative verdict of manslaughter may have caused an accused to lose a real chance of being found not guilty of murder but guilty of the alternative charge, this places the case in a different category. We recognise that, as was probably the case here, the appellants' counsel may have been reluctant, as a matter of tactics, to see manslaughter left. But directions could have been framed by the trial judge so that it was left as an alternative verdict without unduly prejudicing the appellants in the case each wished to make. We have little doubt that had her Honour been asked to leave manslaughter, she would have done so, and that she would have crafted directions carefully to avoid any prejudice to the case presented by the appellants. 70Accordingly, we consider that this is an appropriate case for leave to be granted to allow each appellant to pursue its ground of appeal against conviction. Should the appeals be dismissed pursuant to the proviso? 71Section 6(1) of the Criminal Appeal Act 1912 provides as follows:- The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred [emphasis added]. 72The application of the proviso was authoritatively discussed by the High Court in Weiss . The approach taken in Weiss has been adopted, explained and applied in a number of cases in both this court and the High Court (see, for example, DJS v R [2010] NSWCCA 200; RWB v R [2010] NSWCCA 147; Kessing v R [2008] NSWCCA 310; 73 NSWLR 22; Cesan v R [2008] HCA 52; 236 CLR 358; AK v State of Western Australia [2008] HCA 8; 232 CLR 438; Gassy v R [2008] HCA 18; 236 CLR 293; Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 at [107] - [108]). 73Mr Odgers SC (supported by Mr Hanley SC) argued that the answer to the Rule 4 provision, in the circumstances of this case, resulted in the same issue arising under the proviso. Senior counsel argued that the failure to leave manslaughter in the circumstances demonstrated that there had been a miscarriage of justice and that, pursuant to section 6(1) of the Criminal Appeal Act 1912 , this court was bound to allow the appeal unless the proviso was engaged and then found to operate in favour of the prosecution. The issue he propounded in relation to the proviso, was whether "it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder" ( Gillard per Gleeson CJ and Gummow J at 422 [19] - [20]). In answering that question, Mr Odgers submitted it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at a new trial ( Kanaan at [75] (4)). Applying these tests, Mr Odgers argued that a jury, properly instructed, would not necessarily have returned a verdict of murder rather than of manslaughter. 74The Crown took issue with Mr Odgers in these regards. First, the Crown submitted that the issue as stated under Rule 4 is not, in substance, the same issue as arises in a consideration of the proviso. The Crown argued that the Rule 4 position was a separate and preliminary qualification to the appellant's right to appeal, and is one in which he bears the onus. Importantly, however, the Crown argued that the reference in Gillard to the manner in which the proviso is to be approached (as it had been relied on by Mr Odgers) was inconsistent with Weiss . The Crown argued that the proper approach to the application of the proviso is not whether "it is clear that a jury properly instructed would necessarily have returned a verdict of murder", but "whether a substantial miscarriage of justice has actually occurred". 75As to the first point raised by the Crown, Mr Odgers conceded in reply that the onus under Rule 4 fell upon each of the appellants in the present matter. He accepted that this placed the burden on the appellant to show that there had been a miscarriage of justice, whereas under the proviso the burden fell upon the Crown to show that there had not been a substantial miscarriage of justice. However, notwithstanding this difference in the placement of onus, Mr Odgers argued that it was unlikely in the present matter to have practical consequences. In this regard, he referred to the observations of Basten JA in Carlton v R [2008] NSWCCA 244; 189 A Crim R 332 at 345. He submitted that, in practical terms, it was likely to be a relatively rare case in which the court was unable to reach a view and the burden thereby became decisive. 76On the matter of critical difference between himself and the Crown, Mr Odgers emphatically submitted that, in the context of a case where manslaughter should have been left, there was no inconsistency between the High Court's decision in Weiss , and the earlier decisions such as Gilbert and Gillard . 77In view of the competing submissions, it will be necessary to examine recent statements made by the High Court in relation to the following negative proposition stated in Weiss at [44]:- It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. 78In Darkan v R [2006] HCA 34; 227 CLR 373, the plurality (Gleeson CJ, Gummow, Hayden and Crennan JJ) addressed two possible defects in a criminal trial that were excepted from the proposition advanced in Weiss . At 401 [94], the judgment stated:- In Weiss v R this Court put aside questions relating to two particular kinds of defect in a trial. One was whether the proviso could be applied when there had been "a significant denial of procedural fairness". This does not arise, because the trial was procedurally fair. The other was whether the proviso could be applied where there had been a sufficiently "serious breach of the presuppositions of the trial". This was a reference to a trial which had "so far miscarried as hardly to be a trial at all" or "where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings". Neither defect existed in relation to the trial so far as it concerned the first appellant. 79In AK v Western Australia [2008] HCA 8; 232 CLR 438, Gummow and Hayne J qualified, in certain respects, the proposition in Weiss . This was a case in which the Court of Appeal in Western Australia had examined the record of the trial for itself to determine whether a substantial miscarriage of justice had occurred. At [41] - [42], the joint judgment stated:- [41] The focus of attention in the Court of Appeal in the present matter was whether that Court should be satisfied on the record of the trial that the evidence led at the appellant's trial proved beyond reasonable doubt his guilt of the three counts of indecent dealing. Two members of the Court (Roberts-Smith and Pullin JJA) concluded that a reading of the whole of the evidence led at trial left no doubt that it was the appellant who touched the complainant and committed the offences and, that being so, that [the proviso] was engaged. The third member of the Court ... was "unable to conclude that a verdict of guilty was the only verdict reasonably open on the evidence". [42] The Court of Appeal was wrong to focus only upon whether that Court could conclude from the written record of the evidence properly admitted at trial that the appellant was proved beyond reasonable doubt to be guilty of the offences charged. To approach the matter in that way paid insufficient regard to the error of law or miscarriage of justice which, by operation of s 30(3), otherwise required the Court to allow the appeal. (The particular error in the trial was that the judge who had conducted the trial without a jury, failed to give adequate reasons for his findings). 80The joint judgment (at [52] - [53]) examined the Weiss proposition:- [52] In Weiss v R , the Court emphasised the need when applying a statutory provision to look to the language of the statute rather than secondary sources or materials. With respect to the proviso to the common form criminal appeal statute the Court said: It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration. [53] In Weiss , the Court identified one circumstance in which the proviso to the common form criminal appeal statute cannot be engaged. The Court said ([44]) that the proviso cannot be engaged "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty". This negative proposition (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred. To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language. 81Their Honours stated (at [55]) that:- In every case it will be necessary to consider the application of the proviso ... taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal [emphasis added]. 82Finally, at [59], the joint judgment stated:- When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred . That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the enquiry about the proviso's application in appellate review of a jury trial, enquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [emphasis added]. 83This qualification, albeit appearing in a different context, was again emphasised by Gummow and Hayne JJ in Gassy v R [2008] HCA 18; 236 CLR 293. In that case the majority (Gummow, Kirby and Hayne JJ) considered whether a trial judge had erred in refusing to permit an accused to be represented by counsel during argument on a voir dire, and whether he had erred in giving a particular direction to the jury. Their Honours, referring to the proviso in the South Australian legislation (section 353(1) and (2) of the Criminal Law Consolidation Act 1935 (SA)) said at [16] - [17]:- [16] As this Court pointed out in Weiss v R , judicial expressions describing the task presented by the proviso to the common form criminal appeal statute must not be taken as substitutes for the statutory language. It is the relevant language of the applicable criminal appeal provision that must be considered and applied. [17] The Court also pointed out in Weiss that the use of the word "substantial" in the proviso to the common form appeal provision ("no substantial miscarriage of justice") was more than mere ornamentation. The expression "substantial miscarriage" was adopted to make plain that the common form appeal provision did away with the old Exchequer rule by which any departure from trial according to law, regardless of its nature or importance, entitled the accused to a new trial. But whether there has been a "substantial miscarriage" at any trial will depend, as was also pointed out in Weiss , upon the particular facts and circumstances and "[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given " [emphasis added]. 84Their Honours, in Gassy , then referred to the passage in Weiss that had been selected for comment in AK v State of Western Australia . Once again, they referred to it as "one important negative proposition". Their Honours then stated (at [18]:- The negative proposition identified in Weiss states when the proviso may not be engaged but, as the reasons in Weiss make plain, it is not a statement that may be treated as a complete and sufficient paraphrase of the statute. To approach the application of the proviso as if its operation is sufficiently described by describing when it is not engaged would commit the very same error the decision in Weiss sought to identify. 85The joint judgment then considered the impugned directions that had been given by the trial judge. The deficiencies in the direction, in their Honour's view, "rendered this trial a miscarriage of justice" ( Green v R (1971) 126 CLR 28 at 34). 86Their Honours next considered whether the impugned direction was an error of a kind which precluded engaging the proviso. Their Honours said at [34]:- Whether the error constituted by giving the impugned instructions is properly described as "fundamental" or as an error going "to the root of the proceedings" would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that "no substantial miscarriage of justice has actually occurred". In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [emphasis added]. In examining this, their Honours said at [36] - [37]: [36] The case against the applicant depended, in critically important respects, upon what the jury made of each of two separate mosaics of evidence adduced by the prosecution in proof of what was alleged concerning the applicant's presence and actions in Brisbane and in Adelaide. Important elements of each of those mosaics were provided by evidence given by persons who did not know the applicant but identified him as the man whom they had seen. [37] The conclusions which the prosecution urged the jury to reach at the applicant's trial depended upon an assessment of the accuracy and reliability of this evidence. The conclusions for which the prosecution argued cannot safely be reached by an appellate court when it can refer only to the written record of the evidence. 87The joint judgment concluded that, on the record of the trial, the full court could not have been persuaded beyond reasonable doubt of the applicant's guilt, and that it followed that the appeal should be allowed. 88Kirby J provided a separate decision. However, it is clear that his Honour (at [46]) agreed with the reasons given by Gummow and Hayne JJ that there had been an error of law in the interlocutory ruling concerning the applicant's entitlement to counsel. Importantly, Kirby J also agreed with the joint judgment that there had been a miscarriage of justice resulting from the supplementary jury direction referred to by Gummow and Hayne JJ. At [52], Kirby J stated:- Consequently, the applicant has established on each of the residual complaints about his trial either a "wrong decision on any question of law" or "that on any ground there was a miscarriage of justice". According to the general provision of the Criminal Law Consolidation Act for the determination of criminal appeals in ordinary cases, it was therefore the prima facie duty of the Court of Criminal Appeal to allow the appeal against conviction. 89Kirby J then discussed the proviso and, in that regard, the decision in Weiss . 90After an extensive and careful examination of the Crown evidence at trial, Kirby J concluded that a re-trial was necessary. At [106] - [107], his Honour said:- [106] In Weiss, this Court said (at [45]): [T]here may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind. There have been many cases where judges of this Court have made similar points ( See eg Mraz v R (1955) 93 CLR 493 at 514 per Fullagar J; [1955] HCA 59; cf Nudd (2006) 80 ALJR 614 at 645 [162]; 225 ALR 161 at 200-201; Libke (2007) 81 ALJR 1309 at 1322 [53]; 235 ALR 517 at 533) . AK v Western Australia involved a trial by judge alone but the principles are relevantly the same. There Gleeson CJ and Kiefel J, although in dissent as to the disposition, said (at [23]): [S]ome errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court's view as to the guilt of the accused. [107] To similar effect Gummow and Hayne JJ, in the majority, said (at [59]): [P]ersuasion of the appellate court of the accused's guilt does not in every case conclude the enquiry about the proviso's application in appellate review of a jury trial. And Heydon J, also in the majority, citing the foregoing passage from Weiss , observed that (at [87]): ...there may be cases where it would be proper to allow an appeal and order a new trial without applying the proviso ... includ[ing] cases 'where there has been a significant denial of procedural fairness at trial'. 91Kirby J found that the applicant had lost the chance of a trial that was conducted fairly, impartially and in accordance with law. This is as a consequence of the trial judge not adequately repairing the injustice to the applicant flowing from the late supplementary direction that had been given. Kirby J considered that the High Court was not in a position to conclude that no substantial miscarriage of justice had actually occurred. 92Rafael Cesan v R [2008] HCA 52; 236 CLR 358 was an appeal that followed upon the "sleeping judge" trial. French CJ held that the circumstances of the trial judge falling asleep on a number of occasions during the trial had resulted in a miscarriage of justice. It was, as he described it (at [96]) "a miscarriage of justice by failure of the judicial process". It was constituted "by the judge's substantial failure to maintain the necessary supervision and control of the trial". Further, his conduct had created "a distraction during the trial process". At [97], French CJ considered the proviso:- It could not be said in this case that there was no substantial miscarriage of justice within the meaning of the proviso to s 6(1). The judge's conduct had a discernible distracting effect on the jury. The reaction of some of the jury members raised a real question about the extent to which they would have attended to the evidence and accorded to the judge's directions the respect and attention they required. The Court of Criminal Appeal was in no position to assess these imponderables. The nature of the miscarriage of justice which occurred put such inquiry beyond its reach. Further, this is a case in which the miscarriage of justice was substantial because it created the appearance of injustice which could not be cured by the Court of Criminal Appeal forming the opinion that a reasonable jury would have convicted the appellants in any event. 93The joint judgment of Hayne, Crennan and Kiefel JJ considered both the issue of a miscarriage of justice and the proviso. As to the first, the joint judgment, focussing on the consequences of the trial judge falling asleep, concluded that there had been a miscarriage of justice. The jury had been distracted from performing their proper tasks, and the trial judge had failed to cure this distraction caused by his own unfortunate medical condition. 94As to the proviso, the joint judgment said (at [123] - [124]):- [123] In Weiss v R , the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions... the Court held that no single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given. [124] The Court further held in Weiss that a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. But the conclusion that guilt of the accused was proved to that standard does not, in every case, suffice to show that there was no substantial miscarriage of justice. An example of circumstances in which consideration of what was proved at trial is not a sufficient basis for applying the proviso is provided by AK v Western Australia . In that case the relevant statute required that the trial of an accused, by judge alone, yield a reasoned decision, but there were no reasons given at the appellant's trial for the determination of the central issue tried in the case. That being so, it could not be said that there was no substantial miscarriage of justice. [125] In Wilde v R [1988] HCA 6; 164 CLR 365 at 373 , reference was made to the possibility that some errors occurring in the course of a criminal trial may amount to such a serious breach... as to deny the application of the proviso. 95Their Honours then added (at [126]):- But just as the application of the proviso is not to be determined by deduction from expressions which attempt to describe the operation of the statutory language in other words, what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. And the application of the proviso is not to be determined according only to whether the form of expression used in Wilde , or some other conclusive statement, appears to be an apt description of the course of the trial. Rather, it is necessary to have regard to the miscarriage of justice that has been identified [emphasis added]. 96The joint judgment then identified that, as the miscarriage in the present matter lay in the distraction of members of the jury, it was not possible to conclude, on the written record of the trial, that the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. That was a necessary condition for application of the proviso, and accordingly, it had not been made out. In reaching this conclusion, the majority referred to the "natural limitations" that exist in the case of an appellant court proceeding wholly or substantially on the record of the trial. 97Both Gummow and Hayden JJ supported the reasons given by Hayne, Crennan and Kiefel JJ. 98Before coming to a resolution of the difference between the parties on this point, it is necessary to note that, in a recent decision ( R v Nguyen [2010] HCA 38; 85 ALJR 8), the High Court at [50] declined to apply the proviso and, in so doing, referred to the principles as articulated in Gilbert and Gillard :- ... The decisions in Gilbert and Gillard also require the further conclusion that it cannot be said that there was no substantial miscarriage of justice in the case of Dang Quang Nguyen in not leaving manslaughter as an available verdict. 99This decision of the High Court was later picked up and applied by Beazley JA in Blackwell v R [2011] NSWCCA 93 at [50] and [55]. Her Honour went so far as to suggest that a failure to leave manslaughter equated to unfairness in the conduct of the trial. Resolution 100We would prefer to base our conclusion in the present case on two propositions. 101The first arises from the High Court statement that a "necessary but not always sufficient step" in the application of the proviso is the negative stipulation in Weiss . Having regard to our findings at [61] to [66], we are not persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the appellants' guilt of murder. Moreover, the "natural limitations" referred to in the authorities have particular relevance in these appeals for the court's ability to be so satisfied, wholly or substantially on the record of the trial. We refer, in particular, to the lack of precision in the medical evidence concerning the injuries, and, more importantly, the difficulty in assessing the credit and reliability of the four "confessional" witnesses, based solely on our reading of the record. While we are entitled to take into account the verdict of guilty reached by the jury, this consideration must be given less weight in the present matter. This is because the jury were not invited to consider manslaughter, and were not directed on that issue. 102The second proposition derives from the reminder in the authorities to which we have referred that the "negative stipulation" in Weiss is not itself to be treated as "a complete and sufficient paraphrase of the statute" ( Gassy at [18]). It is always necessary to consider whether a substantial miscarriage of justice has actually occurred. In considering that question, posed by the statute, it remains necessary to consider the nature of the error, and in doing that, the court is entitled to consider the possible effect that the error may have had on the outcome of the trial ( Gassy at [34]). In view of our finding (at [68]), in relation to Rule 4, we are satisfied on that basis also that the proviso should not apply. The nature of the error, we have found, may have caused each appellant to lose a real chance, or a chance fairly open to him, of being found not guilty of murder, but guilty of manslaughter. It is the nature of the error itself in the particular circumstances of the present trial that leads us to this conclusion. 103Contrary to the Crown submissions, we do not consider that there is anything in Weiss , as explained by later decisions, that prevents this approach being taken. It was the approach endorsed by Gummow and Hayne JJ in AK v Western Australia and later approved in Gassy by the majority. Further, the application of the approach taken in both Gilbert and Gillard were endorsed, as we have pointed out, in the recent decision of the High Court in Nguyen . Conclusion 104We are satisfied that manslaughter should have been left in the present matter, notwithstanding that it was not raised as an alternative by either the Crown or the appellants at trial. Further, we do not consider that Rule 4 should stand in the way of the appeal being allowed in each case. We are satisfied that the proviso should not be applied in favour of the Crown. 105Before departing from the matter, we should add, in fairness to the trial judge, that nothing we have said is intended to be critical of her actual conduct of the trial. The trial judge conducted each and every aspect of the trial in precisely the way she was asked to do by the parties. 106The order of the court is that, in each appeal, the appeal is allowed and the appellant is to have a new trial. ********** 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. Decision last updated: 29 October 2012