Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cooper v Regina [2011] NSWCCA 258 Hearing dates: 17 and 18 February, 15 April 2011 Decision date: 05 December 2011 Before: Beazley JA at [1]; Hidden J at [258]; R A Hulme J at [261] Decision: Appeal against conviction dismissed. Catchwords: CRIMINAL LAW - verdict - appeal against conviction - whether conduct of trial by counsel resulted in miscarriage of justice - trial counsel failed to lead medical evidence of deceased's mental health - trial counsel failed to cross-examine on material in medical records - trial counsel failed to call witnesses - whether appellant lost an opportunity of acquittal that was fairly open to the jury - no reasonable explanation for trial counsel's failure to lead medical evidence and cross-examine on medical records - reasonable explanation for failure to call witnesses - no miscarriage of justice - appeal dismissed CRIMINAL LAW - joint criminal enterprise - whether trial judge erred in leaving a joint criminal enterprise open to the jury as an alternative basis for liability - no evidence to support a joint criminal enterprise - trial judge wrongly put the alternative case on joint criminal enterprise to the jury CRIMINAL LAW - verdict - appeal against conviction - directions of trial judge - whether trial judge erred in directions on self-defence and defence of another - whether trial judge erred in directing the jury in relation to admission by witness Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21 Garrett v R [1977] HCA 67; 139 CLR 437 Gilham v Regina [2007] NSWCCA 323; 178 A Crim R 72 HG v R [1999] HCA 2; 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Markby v R [1978] HCA 29; 140 CLR 108 Matusevich v R [1977] HCA 30; 137 CLR 633 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 Nudd v R [2006] HCA 9; 80 ALJR 614 Osland v R [1998] HCA 75; 197 CLR 316 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 R v Carroll [2002] HCA 55; 213 CLR 635 R v Tangye (1997) 92 A Crim R 545 Rogers v R [1994] HCA 42; 181 CLR 251 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Washer v The State of Western Australia [2007] HCA 48 Weiss v R [2005] HCA 81; 224 CLR 300 Texts Cited: Brett, Waller and Williams, Criminal Law, 8th ed Category: Principal judgment Parties: Bradley Cooper (Appellant) Regina (Respondent) Representation: T A Game SC, S Buchen (Appellant) D Arnott SC (Respondent) Legal Aid (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2004/2297 Publication restriction: Restricted due to re-trial of Bradley Cooper 2004/2297 to commence on 25 November 2013. Decision under appeal Citation: R v Bradley Douglas Cooper [2005] NSWSC 791 Date of Decision: 2005-09-05 00:00:00 Before: Buddin J File Number(s): SC 2004/46 Judgment 1BEAZLEY JA : The appellant, Bradley Douglas Cooper, was arraigned on an indictment containing the following counts: (1) That on 22 March 2003, he did murder Dale Kevin Muldoon contrary to the provisions of the Crimes Act 1900, s 18(1); (2) That on 22 March 2003, he did dispose of the body of Dale Kevin Muldoon with intent to pervert the course of justice contrary to the provisions of the Crimes Act 1900, s 319. The appellant pleaded not guilty to count 1 (the murder count) and guilty to count 2 (the pervert the course of justice count). 2A jury trial commenced on 30 May 2005 before Buddin J in Bathurst. On 15 June 2005, the jury returned a guilty verdict on the murder charge. On 5 September 2005, the trial judge sentenced the appellant on both counts. The overall effective sentence imposed was 22 years with a non-parole period of 17 years. 3The appellant appealed against his conviction. 4The victim of the murder, Dale Kevin Muldoon (the deceased) was killed on the evening of Saturday, 22 March 2003, in the kitchen/dining room area of the home of the appellant and his partner, Julie Quinn. The deceased had been forcefully struck on his head a number of times with a baseball bat and with the back surface of the head of a tomahawk/axe. The appellant and Ms Quinn were both present at the time. The appellant, with the assistance of a friend, Kevin Denne, disposed of the deceased's body in a nearby forest the following day. The appellant's niece, C, drove the appellant and Mr Denne, with the body in the car, to the forest. The appellant and Mr Denne then went to the local tip, where the appellant threw a hessian bag onto a fire. The bag probably contained the baseball bat and the axe. 5The deceased was listed as a missing person in early May 2003. His body was finally located on 19 June 2003. Both the appellant and Ms Quinn were charged with the deceased's murder and with disposing of his body with intent to pervert the course of justice. Ms Quinn pleaded not guilty to both charges and was tried separately, prior to the appellant's trial. She was acquitted of both charges. Ms Quinn's acquittal is central to the sixth ground of appeal, as explained below. 6The primary case advanced by the Crown at trial was that the appellant had delivered all the blows, that is, the blows inflicted both by the axe and the baseball bat, to the deceased's head and thus was solely responsible for the murder of the deceased. This case was based on Ms Quinn's evidence that she saw the appellant inflict the blows to the deceased's head, both with the axe and the baseball bat and that, although she was an observer to the murder, she did not participate in any way. 7The Crown also advanced an alternative case based on a joint criminal enterprise in which it alleged that Ms Quinn had delivered the blow with the axe. On this case, the appellant and Ms Quinn were both responsible for actions that led to the deceased's death and each had the relevant intent to either kill, or to inflict grievous bodily harm upon the deceased. 8In an exchange with the trial judge before he addressed the jury, the Crown confirmed that its principal case was that the deceased delivered all the blows to the deceased's head. This was the case the Crown then put to the jury, namely, that the jury would accept Ms Quinn's evidence, beyond reasonable doubt, that the appellant delivered all the blows to the deceased's head. So far as the alternative case was concerned, the Crown relied upon an admission that C said Ms Quinn made to her, that she had struck the deceased with the axe. 9The defence case was that the deceased had picked up the baseball bat and struck the appellant and whilst he stood over the appellant with a knife, Ms Quinn came to the appellant's rescue and struck the deceased with the axe, killing him. The trial judge also directed the jury on the defence of provocation, based upon remarks made by the deceased to the appellant which caused the appellant to become angry. He pointed out, however, that the Crown would say that the appellant had not lost self-control in such a fashion as to be provoked. 10The appellant did not give evidence and no other evidence was adduced in the defence case. Issues on the appeal 11The appellant appealed against conviction on the following grounds: (1) The trial judge erred in leaving joint criminal enterprise as a basis for liability of the appellant. (2) Alternatively, if ground 1 fails, the trial judge's directions on joint criminal enterprise failed to identify and adequately explain the narrow factual foundation of which such a basis for liability might be available. (3) The trial judge erred in his directions on " self-defence " and " defence of another ". (4) The trial judge erred in failing to direct the jury appropriately or adequately on the subject and significance of Ms Quinn's alleged confession to C. (5) The trial miscarried by reason of the failure of the appellant's counsel at trial: (a) to lead medical evidence, including mental health service records of the deceased which would have shown that the deceased suffered from a psychotic mental illness and was prone to " bizarre and dangerous behaviour " and was " aggressive " and " paranoid " when intoxicated and when using drugs; (b) to cross-examine on material appearing in the medical records in order to support the drawing of the necessary inferences. (6) The prosecution was not entitled to rely on a case against the appellant based on a joint criminal enterprise with Ms Quinn, given her acquittal of the offence of murder prior to the trial of the appellant. 12A further ground of appeal (ground 7), which raised a similar issue to ground 5, was formally abandoned by the appellant during the hearing of the appeal. 13The appellant required leave to appeal as his notice of intention to appeal was well out of time. The Crown initially objected to leave being granted. However, the Crown withdrew its opposition to the grant of leave in respect of all grounds. In the circumstances, leave to appeal should be granted. 14Ground 5 of the appeal was based upon the manner in which the trial had been conducted by trial counsel, allegedly resulting in a miscarriage of justice. Evidence was given by way of affidavit from trial counsel and the appellant, each of whom was cross-examined. Mr Parkinson, the solicitor who principally instructed at trial, is now deceased. However, file notes Mr Parkinson made during the course of the trial and notes of instructions and comments that the appellant wrote during the trial were in evidence on the appeal. The appellant waived privilege in respect of this material. The evidence at trial relating to the murder 15The appellant and Ms Quinn lived in Lithgow with the appellant's daughter and Ms Quinn's 9-year-old son, J. The deceased also lived in Lithgow and resided with his grandmother, Daphne Muldoon (Mrs Muldoon). On Saturday, 22 March 2003, at about 4 pm, the deceased walked past the appellant's house. Ms Quinn's son waved to him and Ms Quinn invited him in. Ms Quinn said that the deceased did not appear to be intoxicated at that time. 16At about 5 pm, the deceased and the appellant telephoned for a taxi to pick up a cask of wine for them. The wine was delivered by a taxi driver, Terrence Theobald. Mr Theobald gave evidence that the deceased, whom he knew, came out from the house and paid him for the wine. Mr Theobald observed that as the deceased walked back into the house, he was " walking slowly and he appeared to be off his head on a mixture of drugs and alcohol ". 17There was evidence that the deceased had been drinking and smoking marijuana with a friend, Darren Harvey, the evening before and had some further alcohol the next morning. The post-mortem report recorded the deceased's blood alcohol reading of 0.101. Ms Quinn's evidence 18Ms Quinn was called as a witness in the Crown case. Her evidence was critical to the first basis upon which the Crown put its case, namely, that the appellant had delivered all the blows to the deceased's head. Ms Quinn said that she, the appellant and the deceased were seated at a table in the kitchen, drinking. Initially, the mood " at the table " was " just basically normal ". She said, however, that the mood changed and the deceased became a " little disorientated " and was making irrational statements. She said he " insinuated that [the appellant] was a 'rock spider' ", a known euphemism for a child molester. Ms Quinn said that the appellant became angry and punched the deceased " maybe 3 times ". She said the deceased, who was a small man compared with the appellant, did not respond other than to put his hands up in front of his face. 19Ms Quinn's son, J, was in the lounge room, watching television. Ms Quinn said that she took him into her bedroom where there was another television and shut the door. She said that she returned to the kitchen and made dinner for her son. The appellant and deceased continued to argue and the appellant became upset, yelling, " [y]ou're not leaving here alive ". Ms Quinn said that the appellant picked up a child's metal baseball bat that was in the corner of the room and struck the deceased, who was still seated at the table, on the back of the head about three or four times. The deceased got up and tried to put his arm up, but the appellant struck him again on the back of the head and he fell to the floor on his stomach. The baseball bat broke during the course of the blows, leaving the bat with a sharp, serrated edge, with which, Ms Quinn said, the appellant forcefully poked the deceased's head. 20The appellant said that he wanted to go to the toilet and handed Ms Quinn the bat, instructing her to hit the deceased if he moved. Ms Quinn said that she didn't take hold of the bat when the appellant handed it to her and it fell to the floor. Ms Quinn said she went over to the deceased and shook him and told him to " get out of here ". She said the deceased did not respond. The appellant came back into the kitchen and Ms Quinn said that she went to check on J. Ms Quinn said she then heard a " scrape sound from the kitchen " which she knew to be " the kids little axe they used to chop the firewood ... sliding down the wall from where it was kept ". 21Ms Quinn said that she went back to the kitchen and saw the appellant hitting the deceased " two or three times " on the temple with the axe (Tr 336). She said that by the time she reached the kitchen, she saw the deceased lying on the floor and "[ the appellant] had the axe in his hand and then I just stood there and he ripped ... ". She explained that when she walked into the kitchen she saw the appellant holding the axe and, with a " hitting motion ", strike the deceased. She said she saw the axe land on the deceased's right temple. 22Ms Quinn said that shortly afterwards, the appellant got a blanket from the lounge room and told Ms Quinn to help him wrap the deceased's body in it. The appellant then said he was going to telephone Mr Denne and he left the house for a short time. It was common ground at the trial that the appellant did not have a telephone service to his home and that there was a public telephone nearby. Ms Quinn said that Mr Denne came to the house sometime around midnight. She said that she was finishing mopping up the floor when he arrived. 23Ms Quinn also said that later that same evening, the appellant threatened her, saying, " I've known this fuckwit all my life and I killed him like that, I've only known you five years, imagine what I'll do to you ". In cross-examination, she was unsure whether the appellant made this threat before or after the appellant hit the deceased with the axe. 24The following morning, C arrived at the appellant's house in her car and drove the appellant and Ms Quinn to Mr Denne's house. Ms Quinn stayed at Mr Denne's house and C left in her car with the appellant and Mr Denne. 25Ms Quinn said that the appellant instructed her, as he was leaving Mr Denne's house, not to return home until midday and that she was not to speak to anyone. She said she arrived home at about 12.05 pm and C arrived, alone, by car, sometime later. Ms Quinn's evidence in chief then proceeded as follows: "Q. Did she come into the house? A. Yes. Q: Was there any conversation between the two of you in the house? A: Yes. Q: What was that? A: She told me that the boys would find their own way back that evening. Q: Was there any other conversation? A: No." 26Ms Quinn denied in cross-examination that the deceased struck the appellant with the baseball bat after the appellant had punched the deceased. She denied that there had been a tussle in which the appellant ended up on the floor on his back and the deceased was " over the top of him ", " pressing [a knife] towards the [appellant's] throat ". She denied that she was standing in front of the deceased at this time and " picked up the axe ... and struck [the deceased] four times to the head ". She denied that she and the appellant then discussed what to do with the deceased's body or that the appellant " had decided to get rid of [the deceased's] body in order to protect [her] ". She denied that she was responsible for the deceased's death. Ms Quinn denied she had told C that she had used the mop and bucket to clean the blood from the walls and ceiling. Mr Denne's evidence 27Mr Denne was a longstanding friend of the appellant and lived 10 minutes walk away from the appellant's home. According to call charge records, the appellant telephoned Mr Denne from a nearby public telephone at 1.24 am on Sunday, 23 March 2003. The appellant told Mr Denne that he wanted to speak to him about something important. 28Mr Denne said that when he arrived at the appellant's house, Ms Quinn was mopping up blood. He saw a body wrapped in a blanket. He said that Ms Quinn pulled back the top part of the blanket and he saw the deceased's head with blood on it. Mr Denne was challenged in cross-examination as to who had pulled back the blanket. He eventually said the appellant had pulled back the blanket. 29Mr Denne said he asked the appellant what had happened and he responded that the deceased had threatened the appellant's and Mr Denne's family and " they got into a fight ". The evidence as to the threat to Mr Denne's family is to be understood in the context that one of Mr Denne's daughters was the appellant's biological daughter. Mr Denne said he reluctantly agreed to help dispose of the deceased's body. 30Mr Denne went home and sometime after 8 am the following morning, Sunday, 23 March, the appellant and Ms Quinn arrived at Mr Denne's house with C, who was driving her vehicle. Mr Denne said he was still reluctant to assist with the disposal of the body, but that the appellant threatened him if he did not, saying, " If you don't come and help me I'll put you with him ". 31Mr Denne gave evidence of how and where they disposed of the deceased's body. He said that C drove him and the appellant back to the appellant's house. They put the body in C's vehicle and the appellant directed C to bushland where they buried the body. Mr Denne also gave evidence of throwing a hessian bag onto a fire at the tip. Mr Denne said he noticed that both of the appellant's hands were bruised. 32Mr Denne admitted in cross-examination that he had initially lied to police in that he said a male had assisted to move the deceased's body from the kitchen to the car and had driven the car into the bush. He said he was trying to protect C, who was a minor at the time. He denied that he had told a Ms McKenna that Ms Quinn had admitted to him that she had killed the deceased. He also denied that he was trying to protect Ms Quinn, because of a brief liaison he had had with her. He denied that he had drunk any alcohol when in C's vehicle, as C alleged. C's evidence 33The appellant's niece, C, was charged with being an accessory after the fact to murder but was granted an indemnity on condition that she give evidence in the appellant's trial. 34In her evidence, C said that at the appellant's request, she went to his house one morning of the weekend of 22-23 March 2005. She went into the lounge room but did not notice anything unusual. She said that the appellant asked her to drive him and Ms Quinn to Mr Denne's house. On the way, the appellant said he would " explain it all later ". 35C said she was at Mr Denne's house for five or ten minutes and then went back to her vehicle with the appellant and Mr Denne. Ms Quinn stayed behind with Mr Denne's partner. The appellant asked C to drive them to a liquor outlet. On the way to the liquor outlet, the appellant said to her that someone had come to the house threatening the kids' lives and that he had " put a stop to it ". In cross-examination, C was uncertain as to the terms of the conversation but said that the effect of what the appellant had said was that there had been a fight. 36C said that after stopping at the liquor outlet, they drove to the appellant's house. She said that, on the way, the appellant and Mr Denne each drank a longneck bottle of VB which they had bought at the liquor outlet. On 17 June 2003, police found two VB bottles in the bush where C had driven the appellant and Mr Denne with the body. Fingerprint testing of the bottles produced a nil result, although the paper label was not tested for fingerprints. No DNA testing was conducted on the bottles. 37When they arrived back at the appellant's house, C emptied the boot of her car and gave the appellant a blue tarpaulin which he took into the house. When she went inside, C saw something wrapped in a blanket and assumed it was a body. She helped the appellant move a table and chairs that were in front of it and then on the appellant's instructions, went outside to keep a " lookout ". 38C said that the appellant and Mr Denne brought the body out to the vehicle, wrapped in the tarpaulin, and put it in the boot. A bag, with " two handles poking out of it ", was also put into the boot. One handle looked like a baseball bat with a red rubber handle and the other was wooden, which she thought was an axe handle. A mop and bucket were also placed in the boot. The appellant told her he was taking a change of clothing with him. 39C said that she drove to a clearing in bushland to which the appellant directed her. The body, bag, and the bucket and mop were removed from the boot. When C asked what the bag was for, the appellant told her " We have to get rid of it because it had DNA on it ". The appellant told C to leave and to tell Ms Quinn that he and Mr Denne would find their own way back. 40C said that she observed that the appellant's knuckles on his right hand were swollen. 41C returned to the appellant's home and spoke to Ms Quinn. Her evidence as to their conversation was the critical evidence upon which the case on joint criminal enterprise was based. It is convenient to consider what C had to say on this point, first, through her statement to the police, upon which she was cross-examined and which she adopted as correct and then in her evidence-in-chief. 42In her statement to the police, C said, relevantly: "[Ms Quinn] said that [the deceased] came around and they were all chummy, talking as friends as they do and then [the deceased], they got alcohol delivered by taxi, right, and then were drinking and then [the deceased] said something, I got told [the deceased] said something about the kids and he was going to kill [the appellant's daughter] ... and [the appellant] just - [Ms Quinn] said [the appellant] just went ballistic and started hitting him and - and [the deceased] started hitting [the appellant] and [Ms Quinn] didn't know what to do so she grabbed the axe and hit him in the head with it and she said it cut him straight down the face ... and that's what he's told me so that was, she said, I didn't know what she said, I didn't know what to do because I thought he was going to kill [the appellant] and so that's where it ended." 43In her evidence-in-chief at trial, C said that when she returned to the appellant's house after leaving the bush where she had left the appellant and Mr Denne, she asked Ms Quinn what had happened. She said that Ms Quinn said: "... she told me that it was [the deceased], she said they were having a fight. ... My uncle and [the deceased] and it got out of hand. I'm not sure whether it was, she said that she hit him or whether it was my uncle that hit him. Q. When you say 'hit him', who do you mean by 'him'? A. Hit [the deceased]. Q. Did she say what [the deceased] was hit with? A. With an axe." 44C said that she went into the kitchen and saw stains on the wall and ceiling and Ms Quinn had told her " that it sprayed " and it " was from [the deceased] ". She said that Ms Quinn had told her that the deceased had been hit on the face. Her evidence-in-chief continued: "Q: Did she say who it was that hit him on the face? A: I was sure she said that she hit him." 45As well as agreeing in cross-examination that her statement to police was correct, C also agreed that she said to the police: "I was in the lounge room with [Ms Quinn] and she told me that she'd hit him with an axe and it hit his head. I'm not sure which way that it had hit his head but he was still alive and blood was spurting on the roof and all around the house and stuff like that." 46C agreed that she had told police that she had asked Ms Quinn about the stain on the ceiling and that Ms Quinn had answered, " That was where I hit him with the axe " and " blood was spurting from his head ". She said that Ms Quinn had told her that the stains were where blood had been on the wall and ceiling. 47C also gave evidence that the appellant told her that the police had been to his house. She said that he told her not to tell the police anything. He told her that he thought that Mr Denne had said something to the police and added " whoever tells the police is going to end up in the same place that [the deceased] did ". Ms Quinn's response to the alleged admission to C 48In her evidence, Ms Quinn said that C came back to Mr Denne's house and asked who was in the blanket. She said that she responded by asking " Didn't your uncle tell you? " She denied that C asked how the murder happened, or that she had told C that she had hit the deceased with the axe. She denied telling C that the deceased had threatened to kill the appellant's daughter and denied that she had told C that she had cleaned up the wall and ceiling with a mop and bucket. She denied that she told C that there had been blood spurting on to the roof from the deceased's head. Dr Little's evidence 49Dr Little, forensic pathologist, conducted a post-mortem examination of the deceased's body on 23 June 2003. At the time of the post-mortem, the deceased's blood alcohol reading was 0.101. Dr Little gave evidence that at the time of death, his blood alcohol level could have been anywhere between 0.101 and half of that, as blood alcohol levels can increase in a decomposing body. Dr Little did not know whether any tests had been done for cannabis. 50The post-mortem examination revealed that the deceased had sustained four injuries to his head, caused by at least four separate blows. Injury number 1 was a large, slightly curved hole in the scalp on top of the right side of the head. There were a large number of skull fractures associated with this injury and a piece of bone had also depressed down into the skull cavity. One of the fractures was star shaped, in the thick bone at the back of the skull and went down to the top of the spinal cord. Another fracture went up the back of the skull, over the left side and then over the top of the skull, ending up in the midline where the two skull bones join. There were lacerations at both the front and the back of the skull. The total distance from the laceration at the front to the two lacerations at the back was 70 mm. Dr Little's opinion was that the lacerations were caused by blunt force trauma rather than by a sharp object. Dr Little accepted that if an axe was blunt, it would tear the tissues and look more like a laceration. 51Injury number 2 was comprised of two fairly superficial lacerations or tearing wounds on the right temple above the ear. These lacerations penetrated the outer layer of the skin only. No bruising was observed associated with these lacerations. There were a large number of fractures around injury number 2 which could have been due to injury number 1. Dr Little could not rule out injury number 2 exacerbating the fractures caused by injury number 1, although she considered this was unlikely. Dr Little considered that it was possible that both lacerations were caused by a single blow, although she could not rule out that they had been caused by two blows. 52Injury number 3 was a diagonal laceration on the back of the left side of the head. It measured 39 mm. The injury was not a full thickness injury and there were no skull fractures associated with it. 53Injury number 4 was a laceration at the back of the head, approximately in the midline and slightly lower than injury number 3. It was shaped like a star from which four splits in the skin radiated out. One went upwards and measured 22 mm. Another went outwards at the two o'clock position and measured 25 mm. Another went outwards at the four o'clock position and measured 32 mm. The other went outwards at the eight o'clock position and measured 17 mm. These lacerations were the full thickness of the skin and could have been caused by a single blow, although it was possible that they were caused by multiple blows. 54Dr Little was of the opinion that injuries 2, 3 and 4 were caused by a blunt object, such as a baseball bat. She considered it was unlikely that such an object caused injury number 1, because the shape of that injury would be difficult to be caused by a bat and was too small to have been caused by a baseball bat. She was of the opinion that an injury such as injury number 1 was highly likely to have been caused by the back surface of the head of an axe or by a blunt axe. 55In Dr Little's opinion, injuries 1 and 4 involved the use of considerable force. She considered that injury number 4 occurred before injury number 1. She also said that injury number 4 could have caused a loss of consciousness, but this was not necessarily so. She was of the opinion that either injury number 1 or injury number 4 could have caused death. 56Dr Little said that she had examined inside the deceased's face and did not see any bruising to the face. She was cross-examined as to whether, if there had been significant blows to the face, there would have been swelling or bruising to that area. She responded that if there had been significant bruising, she would have expected to have been able to see it. 57Dr Little said that there were only relatively few blood vessels in the area of the injuries that she found and that these would not spurt blood. She was asked to assume that there were blood stains on the walls and the ceiling of the appellant's kitchen and, on that assumption, whether she could offer an explanation as to how that might have occurred, if blood had not spurted from a wound. Dr Little explained that there was a phenomenon called " cast-off blood ", which occurred when blood on an implement that was being used to hit someone got " flung off ", as the implement was lifted. She said that " cast-off blood " propelled " quite a distance ". Other evidence 58There was other evidence in the trial, including as to where the deceased spent the night before his death, from his mother and grandmother, and from Mr Selmes, who knew the deceased and saw the appellant and the deceased at the public phone near the appellant's house, on the afternoon of 22 March 2003. This evidence is considered below in conjunction with ground 5, to which it is relevant. Grounds 1-4: errors relating to the case based on joint criminal enterprise as a basis for liability of the appellant 59In grounds 1-4, the appellant challenged the Crown case based on joint criminal enterprise. The appellant's basal proposition was that on the evidence at trial, there was no basis to leave a case of joint criminal enterprise to the jury. He submitted that there was no evidence of pre-concert or of any agreement upon which to base a case of joint criminal enterprise. The appellant further contended that not only was there no evidence to support a case of joint criminal enterprise, such a case was not properly articulated to the jury by his Honour or, for that matter, by the Crown. Rather, directions on the joint criminal enterprise case became intertwined with how the jury should deal with Ms Quinn's alleged confession to C and with the issue whether Ms Quinn had acted in self-defence or, more accurately, in defence of a third person. The appellant argued that the result was that the case of joint criminal enterprise was not put properly to the jury. Joint criminal enterprise 60A case based on joint criminal enterprise carries with it the notion of agreement. In Osland v R [1998] HCA 75; 197 CLR 316 McHugh J stated, at [72]: "... a person ... present at the scene [of the crime] with a person who committed the acts alleged to constitute a crime but was there by reason of a pre-concert or agreement with that person to commit the crime [is liable as a principal in the first degree]." 61His Honour adopted as correct the principle stated in Brett, Waller and Williams, Criminal Law , 8 th ed, p 465: "[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert." 62In McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 the High Court noted, at 113: "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal enterprise." Their Honours continued: "... the complicity of a secondary party [to a crime] may ... be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute a crime, they are all equally guilty of the crime regardless of the part played by each in its commission." 63As Osland and McAuliffe make apparent, a party to a joint criminal enterprise is liable as a principal. This has particular relevance in the present case as Ms Quinn was acquitted of the deceased's murder, a matter upon which the appellant relied in support of ground 6 of the appeal. However, McHugh J's observation in Osland at [79], 345, is of particular importance in this regard. His Honour said: "The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely." (emphasis added) 64McHugh J referred, by way of example, to a perpetrator who was legally insane and thus not criminally liable for a crime. His Honour noted, however, that so long as that person had sufficient mental capacity to enter into the arrangement or common understanding to commit the crime, the other participant in the agreement or common understanding who was present at the crime will be guilty of committing the offence as a principal, if that other participant had the relevant mens rea: see Matusevich v R [1977] HCA 30; 137 CLR 633. In other words, it is the accused's state of mind which is relevant, not the state of mind of the perpetrator of the offence, in determining whether the accused, as a party to a joint criminal enterprise, is guilty as principal of the crime constituted by the acts of the perpetrator. 65This principle was applied in Markby v R [1978] HCA 29; 140 CLR 108. There, it was held that a participant in a joint criminal enterprise, which had violence as one of its contemplated incidents, could be convicted of manslaughter notwithstanding that the person who carried out the killing was convicted of murder. As McHugh J noted in Osland , at [81], the decision in Markby is consistent with the notion that it is the acts constituting the actus rea of the actual offender which are attributed to the other party, not the crime itself. See also R v Lowery and King (No. 2) [1972] VR 560. 66Although agreement is central to the concept of joint criminal enterprise, the authorities are clear that there does not have to be a plan or arrangement reached before the participants set out to commit the criminal activity. A joint criminal enterprise is often proved by the presence of the accused at the scene of the crime and that person aiding and abetting the commission of the crime by the perpetrator. In R v Tangye (1997) 92 A Crim R 545, Hunt CJ at CL, at 556-557, in a passage approved by McHugh J in Osland , stated: "So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime ." (emphasis added) 67To the extent that these principles are relevant to the circumstances of this case, they may be summarised as follows. For there to be liability for a crime by way of a joint criminal enterprise, there has to be more than mere presence at the crime. There has to be an agreement, express or tacit, to commit the crime, or, being present when the crime is being committed, there has to be a readiness to give assistance if required, or there has to be intentional assistance or encouragement to another participant, in the crime. The relevant mental state is that of the accused person. Thus an accused may be guilty of an offence, based on a joint criminal enterprise, even where the perpetrator is found not guilty of the crime or is found guilty of another crime. Was there a case to be put to the jury on the basis of joint criminal enterprise? Ground 1 68The appellant submitted that the Crown failed to prove any agreement for the purposes of the case based on joint criminal enterprise. He contended that there was no evidence of antecedent agreement, nor did the Crown contend for one. Accordingly, any joint criminal enterprise in this case had to be based upon some other form of involvement in the crime. The appellant contended that there was no evidence of an agreement arising during the course of the crime being committed, or any evidence from which an agreement could be inferred, or any evidence of encouragement or willingness to assist the appellant in murdering the deceased. 69It will be recalled that by the time of the appellant's trial, Ms Quinn had been acquitted of the deceased's murder. At the appellant's trial, Ms Quinn and C were both Crown witnesses. Ms Quinn's evidence was the main evidence upon which the principal Crown case, that the appellant, alone, had struck the blows to the deceased's head, was based. Ms Quinn refuted any suggestion that she had made statements of the kind alleged by C. The consequence of Ms Quinn's refutation of C's evidence was that the Crown was conducting its alternative case on a premise inconsistent with the evidence of the witness in its principal case. The appellant submitted that there was a tension, or at least a curiosity, in such an approach. Whilst that is true, it was a product of the Crown framing the alternative case against the appellant. The tension does not answer the question whether, on the evidence, there was a case of joint criminal enterprise to go to the jury. 70The Crown case on joint criminal enterprise was based on the admission that C said Ms Quinn had made to her. The appellant's primary submission was that there was nothing in C's evidence that could constitute evidence of agreement or necessary involvement in the deceased's murder so as to sustain a case based on joint criminal enterprise. In order to determine whether this submission is correct, it is necessary to consider C's evidence in some detail. In this regard, it should be noted that the appellant did not contend that C's evidence-in-chief was different from her statement to the police in June 2003, but rather, that her evidence-in-chief was an incomplete version of what she had told the police. 71C's evidence-in-chief was that Ms Quinn told her that there was a fight which got out of hand and Ms Quinn picked up the axe and hit the deceased with it. In cross-examination, C, in adopting the statement she made to the police, said that Ms Quinn told her she hit the deceased with an axe because the appellant and the deceased were hitting each other, and that Ms Quinn: "... didn't know what to do so she grabbed the axe and hit him in the head ... because she thought [the deceased] was going to kill [the appellant]." 72In my opinion, the appellant's submission should be accepted. There was no evidence to support a joint criminal enterprise. There was nothing in C's evidence that proved an agreement, express or tacit, or any assistance or encouragement either by Ms Quinn of the appellant or by the appellant of Ms Quinn. Rather, it was evidence of Ms Quinn reacting, independently, of her own initiative, to a situation in which she thought the appellant's life was in danger. C's cross-examination made even more explicit the independent basis upon which Ms Quinn acted. Accordingly, even if the jury accepted C's evidence that Ms Quinn struck a blow or blows with an axe, that evidence did not constitute evidence of a joint criminal enterprise as between Ms Quinn and the appellant. 73It follows, therefore, in my opinion, there was no evidence of a joint criminal enterprise and the matter should not have gone to the jury on that basis and ground 1 of the appeal should be upheld. Grounds 2, 3 and 4: the trial judge's summing up 74Grounds 2, 3 and 4 related to the trial judge's summing in respect of joint criminal enterprise. Ground 2 was advanced as an alternative to ground 1. Although I have concluded that ground 1 should be upheld, I propose to deal with the alternative ground, as grounds 2, 3, and 4 are closely linked. In those grounds, the appellant contended that the trial judge failed to properly direct the jury as to the narrow basis upon which the case on joint criminal enterprise was advanced; erred in his directions as to 'defence of another'; and erred in failing to direct the jury adequately on the subject and significance of Ms Quinn's alleged admission to C. 75The appellant's contention as to the inadequacy of the directions to the jury was advanced on the premise that the Crown case on joint criminal enterprise was not based on any pre-concert. Rather, in the way the Crown conducted the case, any agreement or arrangement sufficient to ground a joint criminal enterprise had to be found, if at all, in the carrying out of the crime. This was reflected in his Honour's written directions provided to the jury which contained the following direction as to the alternative case based on joint criminal enterprise: "... each [of the appellant and Ms Quinn] was responsible, by their combined actions, for [the deceased's] death. That is that each of them was jointly responsible in law for the death." 76His Honour commenced his summing up to the jury on 8 June 2005. At the commencement of the next day, trial counsel submitted to his Honour that, having regard to the terms of Ms Quinn's alleged admission to C, the question of self defence, or, more accurately in this case, defence of another, had arisen. Trial counsel submitted, therefore, that it was necessary for his Honour, when directing the jury in relation to joint criminal enterprise, also to direct them that there was an onus on the Crown to negative that Ms Quinn had acted in defence of another. 77When his Honour recommenced his summing up to the jury, he gave standard directions as to what was necessary for there to be a joint criminal enterprise, reflecting what was stated in Tangye. His Honour then dealt with that part of C's evidence where Ms Quinn had allegedly said, " I didn't know what to do because I thought he was going to kill the [appellant] ". The trial judge then directed the jury as to defence of another in the following terms: "... if you were to come to the view that it is a reasonable possibility that Ms Quinn made the admission to C in the terms to which I earlier referred and also that the admission was a truthful and reliable representation of what occurred, then the Crown will not have established that there was a joint criminal enterprise between [the appellant] and Ms Quinn to intentionally kill or inflict grievous bodily harm upon the deceased, because it will not have excluded the fact, which it must, that Ms Quinn was acting in defence of another . The law treats defence of another in the same way as it does self-defence. Although 'self-defence' is referred to as 'defence' I direct you that the onus is upon the Crown to exclude it as an issue in this case . It may do so by proving beyond reasonable doubt one of two things, namely: that Ms Quinn did not believe at the time of doing her act or acts that it was necessary to do what she did in order to defend [the appellant]; or, if it is reasonably possible that she did have such a belief, that nonetheless the act or acts were not a reasonable response in the circumstances as she perceived them." (emphasis added) 78His Honour continued: "As I have said [trial counsel] urges you to accept the admission in its entirety. The Crown, as I have said, submits that you would certainly reject any suggestion that she was acting in defence of [the appellant]. Accordingly, the issue of self-defence, the Crown submits can be safely put to one side." 79Not long after the jury retired to consider their verdict, the trial judge received a note from the jury in which they sought clarification, inter alia, of the case based on joint criminal enterprise. 80The re-direction commenced, relevantly, as follows: "... if you were to come to the view that it is a reasonable possibility that Ms Quinn made the admission to C in the terms to which I earlier referred and also that the admission was a truthful and reliable representation of what occurred, then the Crown will not have established that there was a joint criminal enterprise between [the appellant] and Ms Quinn to kill or inflict grievous bodily harm upon the deceased, because it will not have excluded the fact which it must, that Ms Quinn was acting in defence of another." No objection was taken by the appellant to this portion of the summing up. 81His Honour then said: "The law treats defence of another in the same way as it does self defence. Although self defence is referred to as a defence, I direct you that the onus is upon the Crown to exclude it as an issue in this case. It may do so by proving beyond reasonable doubt one or other of two things. Namely that Ms Quinn did not believe at the time of doing her act or acts that it was necessary to do what she did in order to defend [the appellant], or if it is reasonably possible that she did have such a belief, that nonetheless the act or acts were not a reasonable response in the circumstances as she perceived them. Now as I have said [trial counsel] urges you to accept the admission in its entirety. This whole question of joint criminal enterprise in essence revolves around the admission. The Crown as I have said submits that you would reject it, and even if you were inclined to accept part of the admission, you would certainly reject any suggestion that she was acting in self-defence of the accused, and on that basis the Crown submits that the issue of self defence can be safely put to one side." 82The appellant contended that in directing the jury in these terms, the question of joint criminal enterprise became confusingly entwined with the directions in relation to defence of another, which related to Ms Quinn's state of mind, which was not relevant to the prosecution of the appellant. In the case against the appellant, it was only his state of mind that was relevant. 83The appellant also submitted that this direction demonstrated the difficulty in the Crown's joint criminal enterprise case. Indeed, on the appellant's submission, the Crown case could be reduced to the following ad absurdum propositions: first, that the admission was not made, which was the primary way the Crown advanced the prosecution; secondly, if it was made, it was not true; thirdly, the admission was made and was true; and fourthly, the admission was made and was true except for that part of C's evidence where she had told the police that Ms Quinn had said " I didn't know what to do because I thought he was going to kill [the appellant] ". 84In my opinion, there was no error or inadequacy in his Honour's directions to the jury. His Honour explained to the jury that a joint criminal enterprise could be established by proof that another person was present and encouraged or aided the perpetrator in the commission of the crime. His Honour directed the jury, correctly, that if they accepted the entirety of C's evidence as accurate and truthful, the Crown would not have established that there was a joint criminal enterprise because the Crown would not have excluded the fact that Ms Quinn was acting in defence of another, namely the appellant. 85His Honour also directed the jury, correctly, that the Crown could exclude that Ms Quinn was acting in defence of another, either by proving that she did not believe that it was necessary to do what she did to defend the appellant, or if she did have such a belief, she used excessive force, that is, her " acts were not a reasonable response to the circumstances ". 86No additional submissions were directed to ground 4. In my opinion, subject to the overriding difficulty that there was no evidence of a joint criminal enterprise, his Honour gave appropriate directions to the jury in respect of Ms Quinn's alleged admission to C. 87It follows that I would reject grounds 2-4. Ground 5: failure by trial counsel to lead medical evidence as to the deceased's mental health and to cross-examine on material appearing in the medical records 88The appellant submitted that that there had been a miscarriage of justice within the meaning of the Criminal Appeal Act 1912, s 6 because of the failure by trial counsel to adduce evidence that was central to his defence, namely, that he had been the victim of an attack by the deceased. The scenario sought to be advanced was that the deceased began to behave irrationally and was the aggressor in an altercation that followed and that Ms Quinn had inflicted the fatal blows when the deceased was about to stab the appellant. Ms Quinn was cross-examined to this effect, but she denied this version of events. 89The appellant contended that there was information available that demonstrated the deceased had a history of violent and erratic behaviour when under the influence of alcohol and drugs and that this information should have been adduced in evidence in support of his case of provocation. The appellant contended, therefore, that a fundamental aspect of his case, that he had acted in response to a violent and irrational attack upon him by the deceased, was not placed before the jury. 90The appellant submitted that the Mid Western Area Health Service records (the Service records), which were admissible as business records, should have been tendered: Evidence Act 1995, s 69. He also submitted that Dr Westmore and the persons whose statements he had relied upon to give his opinion should have been called to give evidence. The appellant also submitted that Mrs Muldoon should have been cross-examined as to the matters contained in the Service records, including his drug and alcohol abuse, the fact that he had been brought to the hospital by members of the family due to " bizarre/dangerous behaviour " and that according to the Service records she had reported to a Probation and Parole officer that she was " a little afraid " of the deceased. Evidence at trial as to the deceased's violent and irrational conduct 91Evidence that the deceased was a heavy user of drugs, in particular marijuana and alcohol, and could become violent and irrational, was given by Adrian Selmes and Darren Harvey. 92Mr Selmes was a former school acquaintance of the deceased. He gave evidence that he saw the deceased and the appellant at the public telephone box near the appellant's house late on the afternoon of 22 March 2003. Mr Selmes was cross-examined about his knowledge of the deceased's use of drugs. He agreed that when using drugs, the deceased would " become agitated and aggressive ". Mr Selmes also agreed that, on a previous occasion, which appears to have been a reference to Ms Quinn's trial, he had given evidence that the deceased would have " mood swings ", in which he would " go from being a quiet and calm person to being a more agitated person quickly ". However, in re-examination by the Crown, Mr Selmes said that he did not know what a " mood swing " was. 93Mr Harvey gave evidence that the deceased had stayed at his place on Friday 21 March 2003, the night before the murder. He said that they drank a bottle of Bourbon and smoked marijuana that the deceased had brought with him. He said that they smoked about 6 bongs each. They had also gone out at some stage during the night and bought a carton of beer, some of which they also drank that night. Mr Harvey agreed they were both " pretty drunk ". He said they continued to drink the following morning and the deceased left Mr Harvey's residence " just after lunch " on Saturday, 22 March. 94Mr Harvey had known the deceased for 14 years. In cross-examination, he agreed that there had been an incident some four or five years previously when the deceased had a screwdriver and made a stabbing action with it towards him. However, Mr Harvey contended that the deceased didn't threaten to stab him. Rather, he was waving the screwdriver around, motioning as though he was going to stab him. Mr Harvey said he " knew the [deceased] wouldn't do it ", that is, stab him. Trial counsel asked Mr Harvey whether he agreed that " after a while, [the deceased] calmed down ", to which he responded affirmatively. He also agreed that he considered that the deceased's behaviour was " pretty paranoid " and " pretty irrational " on that occasion. Mr Harvey said that the deceased had told him that he had been diagnosed as suffering from schizophrenia. 95Karen Burley had had a relationship with the deceased during two separate periods of time and had three children with him. After her first separation from the deceased, Ms Burley had a six to eight month relationship with the appellant. She resumed her relationship with the deceased when the relationship with the appellant terminated. She and the deceased were together for about two years on the second occasion. Ms Burley said that the appellant said to her during this period that " if he found out [she] was running around with [the deceased] again ... he'd get [the deceased] ". Ms Burley was not cross-examined about any drug or behavioural problems that the deceased had during their relationship. 96Rose McCann, the mother of Mr Harvey and Ms Burley, had known the deceased for approximately 11 years. In her evidence-in-chief, Ms McCann said that about 5 or 6 years previously, Mr Cooper had " told [her] that he'd get [the deceased]. It might take him years but when he did he'd be sorry ". Ms McCann agreed in cross-examination that the deceased had been a heavy user of drugs. She said however that she considered that the last few times she had seen him, around the time of his death, " he seemed very clean, compared to what he was ". She was asked whether during the time he had been involved in drugs whether that had affected his personality. She responded, " Well, I don't really know. Probably did ". 97Mr Theobald was the taxi driver who delivered a cask of wine to the appellant's premises sometime between 4:30 pm and 5:30 pm on the night of the murder. Mr Theobald knew the deceased and said that on this occasion, when the deceased came out from the appellant's home to collect the wine, he observed him " walking slowly and he appeared to be off his head on a mixture of drugs and alcohol ". Mr Theobald said that the deceased looked very different on this occasion as compared to times when he was sober. 98The deceased's mother and grandmother disagreed, for the most part, that that the deceased had alcohol, drug, or other behavioural problems to any significant degree. 99The deceased's mother, Fiona Phillips, gave evidence that the deceased had lived at his grandmother's house for a number of years. She said that she spoke to the deceased every few months. She said that although she and the deceased had had arguments, she had not observed him to have mood swings. In cross-examination, Ms Phillips was challenged as to her evidence as to the deceased's mood swings. Trial counsel reminded Ms Phillips that, in Ms Quinn's trial, she had responded " yes " when asked whether the deceased had mood swings. Trial counsel also reminded her that she had responded " yes " when asked whether the mood swings were erratic. Ms Phillips responded that she did not believe " his mood swings were erratic with [her] anyway ". When further pressed by trial counsel on these matters, Ms Phillips said that she did not believe that she had " said those things " and she did not " remember saying that ". Finally, she denied that the deceased suffered mood swings or that his behaviour was erratic. 100The deceased's grandmother, Mrs Muldoon, gave evidence that as at March 2003, the deceased was living at her home and had done so for about 12 years. The last time that she saw the deceased was on the morning of Friday, 21 March 2003, when he went into Lithgow with his uncle for the purposes of collecting his social security payment. He did not return home that night, but that was not unusual, as he often stayed at the home of a friend on Friday nights. The deceased rang his grandmother early on Saturday morning, 22 March, and asked if his uncle could pick him up. His uncle was not available and the deceased said that he would catch the bus home and requested his grandmother to " keep his tea for him ". The deceased did not arrive home and that was the last occasion that his grandmother spoke to him. 101Mrs Muldoon denied that the deceased had mood swings. Apart from an occasion when the deceased had told her that someone " was following him " and he locked the back door, she said that he " didn't have any other problem ". She knew that the deceased had received a visit from a member of the Area Health Service but she said she had been told by the Area Health Service on that occasion that there was nothing wrong with him. She agreed that, on occasion, his speech was slurred when he " had a few drinks ". Trial counsel suggested to her that the incident when the deceased had locked the doors and said someone was following him had occurred three to four days before he last left her home, but she said that it was " about three weeks before he left ". 102The extent of the cross-examination of Mrs Muldoon, but more particularly, the matters upon which she was not cross-examined, emerged as one of the significant issues in this ground of appeal. I deal with that later. So far as the cross-examination went, it commenced with drawing Mrs Muldoon's attention to the visit to her home that had been made by the Service as follows: "Q. You're aware of a lady called Gwen -- A. Yes. Q. - alright, coming to your home and she introduced herself to you as somebody from the Local Area Mental Health Team? A. Yes. Q. And did she speak to you and [the deceased] about any medication that he was on at that time? A. He wasn't on any medication that I know of. Q. Did she tell you why she was visiting? A. He'd, he had been to the hospital, he'd been sick. Q. How had been sick, what did you -- A. He was sick in the stomach, something about that. Q. It wasn't the situation that he had become quite paranoid and gone into a psychiatric hospital for treatment? A. No he'd never been in a psychiatric hospital. Q. He didn't go to the Lithgow Hospital for treatment? A. He was in there for one night but he had no treatment. Q. And certainly Gwen described herself as being from the Mental Health Team when she came to visit you? A. Yes and she told me there was nothing wrong with [the deceased] at all. Q. Did you ask why she was there then? A. No I just thought it was a thing that, because he'd been in at the hospital that they did." The cross-examination continued: "Q. Is it the situation Ma'am that [the deceased] used drugs to your knowledge? A. I haven't got a clue, he never did in our house or anywhere near our house so apart from that I would not know. Q. And Ma'am when you were speaking with your [grandson] this day that he locked up the house did you talk to him about that? A. I just asked him what was the matter and he said somebody was following him but he had his tea, went to bed and got up and was fine the next day. Q. Did you notice that there were occasions when his speech was slurred? A. Yes if he'd had a few drinks. Q. And is it the situation that this incident that you're talking about where he locked the doors and believed someone was following him occurred about three or four days before he left your home. A. No it was about three weeks before he left." 103Mrs Muldoon was not further challenged as to the deceased's mental state or violent tendencies as indicated in the Service records, to which it is now necessary to turn. Evidence the appellant said should have been adduced The Mid Western Area Health Service records (the Service records) 104The deceased had been a patient of the Mid Western Area Health Service and, in particular, Lithgow Community Mental Health, from 2001. The Service records revealed that the deceased had presented at Lithgow District Hospital on 30 September 2001 " with what appeared to be drug induced psychosis ". He presented at the Hospital again on 2 October 2001. On this occasion, he displayed " some disorganised and tangential thinking ", which he himself attributed to " a possible mild Schizophrenia ". 105According to the Service records, telephone communication was made with his grandmother, Mrs Muldoon, who had indicated that she had been concerned about his health since he had returned to her home after a job had ended in April that year. His grandmother was agreeable to the deceased staying at her home and indicated she would strongly encourage him to continue treatment. The deceased's patient registration form of that date recorded a past history that he " believes he may have Schizophrenia, no documented MH " (the balance of this notation is illegible). There was also a history of substance abuse. 106Under " Details of Referral ", the following entry appeared: "Brought to [Lithgow District Hospital] by concerned family members. Drug induced psychosis. Bizarre/dangerous [behaviour]. Settled in hospital, [follow up] requested." 107Under " History of Current Problem ", it was stated: "Client believes he has a mental illness. States he hears voices and realises his life is out of control due to unclear/disorganised thinking. Feels this has been happening for several years ... Uses drugs and alcohol, realises this exacerbates problems. Presented on 30/09/01 with drug induced psychosis at [Lithgow District Hospital] transported by family. Lives with grandmother, 3 children there as well." 108The deceased was negatively assessed as to harbouring ideas of harm to self or others. 109The entry under " Psychiatric Histor y" read: "Reports he's felt mentally ill for years but has no formal [diagnosis]." His symptoms were reported to be " present for [about] 8 years ". Under " Current Social Situation ": "accommodation w/ grandparents may be at risk if [behaviour] continues" 110His " Current Level of Functioning " was stated to " [vary] with drug use " and under " Assessment of Strengths " he was recorded as having " some insight, motivation, good family support ". His thought processes were stated to be: "Somewhat tangential/loose associations, illogical thinking, generally able to communicate thoughts and respond to questions" and his " Perception " as: "reports auditory hallucinations and probable delusions" 111The " Preliminary Problem Formulation " provided: "(1) detox, A + OD service provision (2) antipsychotic prescribed by GP Haran (3) family involved, educated, assist w/ med compliance (4) ongoing case management." 112Another entry dated 2 October 2001 noted that the deceased had a history of " some verbal [aggression] occasionally ". 113According to the Service records, Mrs Muldoon, attended Lithgow Hospital on 3 October 2001. The Service records noted a discussion with her in respect of the deceased's decline " over the last six months and convinced him to minimise use of [drugs and alcohol] ". The Service records also noted that although the deceased was living with his grandmother, on most days he stayed with Michelle Walker, who was also a patient of the Service. 114Mrs Muldoon had a further meeting with the Service on 8 October 2001. The notes of that meeting stated that the deceased's grandmother had given the deceased " a few solid reality checks/examples of declining thought processes and functioning ". The notes continued: "Gave her our card and encouraged her to remain firm with [the deceased] re his behaviour and very specific without provoking him if possible. Phone the police immediately if any problems ..." 115On 22 October 2001, the Service records referred to an admission in " [r]esponse to a new referral for mental health care " and a " Principal " diagnosis of " F91 ". This appeared to be a principal diagnosis of " Conduct Disorder ". The " Focus of Care " was marked as " Maintenance " and, again, the deceased was recorded as being a voluntary patient. Under a heading " Eligibility for Early Psychosis Intervention ", a negative response was given to the following pro forma statement: "The person is experiencing a possible or definite psychotic illness, within two years of their first registration with a specialist mental health service for this problem" 116A Health of the Nation Outcome Scale (HoNOS) was completed for the deceased on 22 October 2001, but this recorded him as having no or only minor problems with matters such as being " overactive, aggressive, disruptive or agitated ", or having problems with drinking or drug taking, " hallucinations and delusions ", or " other mental and behavioural delusions ". 117In a " Self Report " completed by the deceased, on 22 October 2001, which asked how the patient had been feeling in the previous four weeks, he ticked the box under the heading " None of the time " for seven of the ten questions, including questions about feeling tired for no good reason, feeling hopeless, feeling restless so as not being able to sit still, feeling depressed and feeling so sad that nothing could cheer him up. He ticked the box under the heading " A little of the time " for two questions, relating to feeling nervous and feeling restless or fidgety. He ticked the box under the heading " Some of the time " for the question, " In the last four weeks, about how often did you feel worthless? ". The deceased was again reported as not meeting the eligibility criteria for " Early Psychosis Intervention ". 118Under a further entry in the Service records on 30 October 2001, there is a reference to the deceased's admission status as " Voluntary ", the reason for referral being " Assessment only "; and to " Verbal Outburst ". Other entries on this date are illegible. There was a notation that his insight into his condition varied as " he struggles with being labelled psychotic ". However, the deceased was recorded as having " much less marijuana and alcohol " and was " much more lucid and calmer ". On this occasion, there was " no evidence of actual psychosis ". 119On 4 October 2002, the Hospital received a referral from the Probation and Parole Service, which stated that the deceased was " delusional and had paranoid thoughts ". He believed that " someone poisoned him and [he] went into a trance ". The referral stated that he had reported hearing " a voice in his head ". The Service had telephoned the deceased's mother, who said he was out for the day, but that he was " OK. not going out much, but OK ". A follow-up consultation with the deceased on 8 October indicated that he was " more settled and lucid " but still " slightly tangential with little ability to focus on a subject in depth ". The deceased did not attend an appointment that had been made for him on 17 October 2002. 120There was another notation in the Service records at this time which assumed particular significance on the appeal. According to the Service records, the Probation and Parole officer reported to the Service that the deceased's grandmother had stated " that she felt a little afraid of him due to his violence and erratic behaviour at times ". The Probation and Parole officer expressed her " strong concerns as to his current mental/psychotic state ". The Probation and Parole officer was aware that the deceased was a patient of the Service and that he had seen " Jeannette " and asked whether " Jeannette " could contact her to discuss the matter further. Jeannette Brew, RN, returned the call and advised the Probation and Parole officer that she could see " no current signs of psychosis " and therefore there was " no justification to continue seeing [the deceased] since he is not unwell at this time ". Nonetheless, the Probation and Parole officer requested that an assessment by a psychiatrist be organised. That was done, but the Service was unable to contact the deceased in the week prior to the appointment. 121The next entry in the Service records was 22 October 2002, when it was noted that the deceased had been in gaol for nine months for a break-in, but that it was likely that the charges against him were dropped, as the circumstances surrounding the alleged events indicated that he was found sitting on the lounge in a house that he had entered because " 'voices' in his head had told him to do so ". 122The next Service record is dated 16 May 2003, when the Service provided a record to Police of its contact with the deceased, who at that stage had been reported as a missing person. The final entry was dated 19 June 2003, which recorded a local newspaper report that the deceased had been the victim of a murder on 22 March 2003. Dr Westmore's report 123The solicitors for the appellant retained Dr Bruce Westmore, forensic psychiatrist, to provide a " personality profile " in respect of the deceased. Dr Westmore provided a report on 13 May 2005. To enable him to prepare the report, Dr Westmore had been provided with the following version of events given by the appellant: "...[the appellant] felt [the deceased] had had a 'violent mood swing, was irrational and at the time of his attack on [the appellant], off his face, as attested to by a taxi driver Terrence George Theobold who delivered alcohol to the deceased only hours before his death." 124Dr Westmore was also provided with the following documents for the purposes of his report: NSW police criminal history and bail report of the deceased; the Service records; and statements of Fiona Margaret Phillips, the deceased's mother, dated 7 May 2003; Daphne Joyce Muldoon, the deceased's paternal grandmother, dated 10 May 2003; Darren John Harvey dated 9 May 2003; Paul Edward Bates, dated 15 May 2003; Michelle Walker, dated 16 May 2003; Bruce Butler, dated 15 May 2003; Russell Muldoon, the deceased's brother, dated 15 May 2003; Denise Fitzgerald dated 17 June 2003; and Terrence Theobold, the taxi driver, dated 27 May 2003. 125Dr Westmore summarised these statements in his report. On the basis of the information provided, Dr Westmore offered a number of provisional diagnoses of the deceased, using the DSM-IV multi axial system. Amongst the provisional diagnoses, Dr Westmore included, under the heading " Psychotic illness ", that based on the medical notes, the deceased had had psychotic experiences, including paranoid thoughts and auditory hallucinations and was described as having disordered thinking. 126Dr Westmore stated that the differential diagnosis for the deceased's psychotic episodes would include a schizophrenic illness, possibly aggravated by drug use, or a drug-induced psychosis. Dr Westmore noted that the available notes suggested that the deceased " suffered a number of psychiatric and psychological problems which were complicated by drug and alcohol abuse ". He also noted a history of the deceased " becoming aggressive when intoxicated with alcohol and possibly with drugs and that he also became paranoid when using substances ". 127Dr Westmore concluded in the final paragraph of his report: "The history contained in the various statements I have read would be consistent with the history given by [the appellant] and the collateral histories might support the proposition that the deceased was intoxicated with drugs and/or alcohol at the time he died and that the deceased was probably suffering from a recurrence of a drug induced psychosis just prior to his death. In view of the deceased's past history of becoming aggressive when drug and alcohol affected, then that may also support other aspects of [the appellant's] history regarding the deceased." Information available from possible witnesses 128To the extent that there may have been evidence available from other possible witnesses, it was only available to this Court in the form of summaries contained in Dr Westmore's report, of statements these persons had made to police. This material is discussed below in connection with trial counsel's evidence as to why she did not call any of these persons as witnesses at the trial. The conduct of the trial 129The appellant contended that the forensic failure to adduce this material meant that there was little objective evidence of the deceased's mental state, which was integral to his version of events. If this material had been adduced in evidence, it would have demonstrated that the deceased suffered from a psychotic illness that made him prone to erratic and violent behaviour when under the influence of drugs and alcohol. This evidence would, on the appellant's submissions, have substantially strengthened his case. In particular, it would have rendered more likely the facts and truth of Ms Quinn's statement to C that the deceased had attacked him and would have supported the case on provocation. 130Trial counsel gave evidence on the appeal explaining why she had not adduced evidence or cross-examined Mrs Muldoon, decisions of which complaint was made. That evidence was contained in trial counsel's two affidavits, sworn 2 March 2010 and 14 February 2011, upon which she was cross-examined. The appellant contended that trial counsel's evidence was unsatisfactory and would not be accepted by this Court. There is a further question as to whether the evidence was relevant in any event, given that the authorities indicate that the test for determining whether there has been a miscarriage when the underlying complaint related to the conduct of the trial, is an objective one. The question of both the reliability and the relevance of trial counsel's evidence is dealt with below. It is first necessary to consider the evidence. 131In her affidavit of 2 March 2010, trial counsel stated, at para (3), that the Service records provided evidence of the deceased's alcohol and substance abuse and possible psychotic illness, but that the " issue was to identify that there was 'violent' behaviour, and the nature and extent of it ". Trial counsel said, at para (17), that she had considered the tender of the Service records but had concluded that there were references in them in relation to the deceased that would not have assisted the defence case. 132Trial counsel also said that the Crown prosecutor had informed her that if the Service records were tendered, the defence should expect further statements from the Crown relating to the deceased's mental state. Trial counsel understood that the additional evidence would come from a nurse whom the instructing solicitor, Mr Parkinson, had interviewed and who said that the reference in the Service records to " bizarre/dangerous [behaviour] " was a reference to the fact that the deceased would not eat, would become reclusive and would not attend to his personal hygiene. Trial counsel said she also understood from Mr Parkinson that the nurse had said that there were fears that the deceased was a danger to himself because of behaviour such as locking himself in his grandmother's shed, smoking cannabis and drinking for lengthy periods, not that he was dangerous to others. 133Trial counsel stated that these matters were discussed with the appellant, who instructed her not to tender the Service records in those circumstances (para (18)). The appellant denied he gave any such instructions. 134Trial counsel also said that she was concerned about the ethics of tendering those parts of the Service records in which there were references to the deceased's " bizarre/dangerous [behaviour] ", as that may have been misleading and/or inaccurate. She said that she was not ultimately confronted with that ethical issue because of the decision, made with the appellant's instructions, not to tender the Service records (para (18)). 135In her affidavit of 2 March 2010, trial counsel, at para (4), gave the following reason for not calling Dr Westmore: "A decision was made early on not to call Dr Westmore in the trial absent further material to support his provisional opinions. If anything was discovered this decision would have of course been revisited. The results of the enquiries made before and after the trial did not alter the earlier decision to refrain from calling Dr Westmore." 136In cross-examination, trial counsel said that the early decision made not to call Dr Westmore quite probably related to problems that she perceived in the Service records. She identified the 'problem' as being the possibility that the Crown would call evidence to explain the Service records. 137Trial counsel also dealt with the question of calling witnesses to attest to the deceased's violent tendencies (para (9)). She said that the information available to her did not support that case and that the highest that the material reached, from investigating various witnesses, was that the deceased had told his grandmother to " fuck off ". 138Trial counsel had interviewed Mrs Muldoon prior to the trial. She said that Mrs Muldoon had presented as a simple, straightforward witness who had described the deceased as a meek and timid person who " wouldn't hurt a fly ". Trial counsel said that she was concerned that cross-examination of Mrs Muldoon be handled delicately so that she would not be provoked into giving evidence about the deceased favourable to the Crown case. For that reason, she had not challenged Mrs Muldoon's evidence as to the nature or extent of the deceased's psychotic or violent behaviour more than she did (para (10)). 139Trial counsel also said that Mrs Muldoon had denied in the interview that she was afraid of the deceased. Trial counsel said that when she asked Mrs Muldoon about the entry in the Service records as to her being " a little afraid " of the deceased, Mrs Muldoon she said that she was not personally afraid him. Rather, her fear was that he would be a danger to himself (para (13)). Trial counsel said that she did not cross-examine Mrs Muldoon as to the entry in the Service records for that reason. 140Trial counsel, at paras (14)-(16) of her 2 March 2010 affidavit, explained why she had not called witnesses to attest to the deceased's violent and erratic behaviour. She stated that the appellant had provided a list of at least eight persons, additional to witnesses the Crown was proposing to call, who, on the appellant's instructions, would give evidence of various encounters with the deceased that demonstrated the deceased's violent and aggressive nature. 141Trial counsel said that most of these persons were contacted and they variously described the deceased as " insipid, ineffectual, weak, pathetic, timid and fearful ". She said that none of these persons had provided any evidence of violent or erratic behaviour by the deceased. By contrast, most of these persons said that they were fearful of the appellant and described him as " a bully " and " aggressive, violent and threatening " (at para (16)). 142One of the named persons was Ms Walker, with whom the deceased had a relationship at around the time of his death. Ms Walker had made a statement to the police in connection with the deceased's death, which was part of the material provided to Dr Westmore for his assessment of the deceased's mental state. According to Dr Westmore's summary, Ms Walker described the deceased's violent conduct in some detail, including an occasion when he had bitten her and another incident where he had kicked a hole in the wall. However, the statement recorded that the deceased only assaulted her when he had been drinking and that when he drank he had a " split personality ". Dr Westmore's summary stated that Ms Walker had taken out an Apprehended Violence Order (AVO) against the deceased due to his violence. 143The notes of the appellant's instructions at trial indicated that he had been insistent that Ms Walker be called as a witness and that this had remained a live issue as between trial counsel and the appellant until late in the trial. In cross-examination, trial counsel denied that she had merely refused (that is, without reason) to call Ms Walker as a witness. She said that Ms Walker was only located late in the trial and was, at that time, living out of her car. Ms Walker had indicated that she would not come to court. Trial counsel said that she also understood that if Ms Walker was called as a witness, she would say that her statement to the police was not true. Trial counsel also said that Ms Walker had a longstanding drug problem. 144Trial counsel agreed in cross-examination that even if the persons that the appellant had wanted to call to give evidence did not support the appellant's case that the deceased was violent and aggressive, the question of the tender of the Service records was an entirely separate consideration, unaffected by what those persons might have said. However, trial counsel said that the overall strategy of exploring the background of the deceased was considered not to advance the issues in the trial in the interests of the appellant, although she agreed that her instructions were that the deceased was erratic, psychotic and potentially dangerous. Importantly, she also agreed that this was the case that she had to make in support of the appellant's defence of provocation. 145By way of further explanation for not calling witnesses as to the deceased's violent and erratic behaviour, trial counsel said that she was concerned about asking questions of witnesses at the trial that would " infer the deceased's bad character ". Counsel said that she advised the appellant of the consequences of doing so. Trial counsel also said in her affidavit of 14 February 2011, at para (11), that the Crown had initially proposed giving evidence of the appellant's alleged violent behaviour towards certain of the Crown witnesses, including Mr Denne and C, and also evidence of his violent relationship with Ms Quinn. However, that evidence had been ruled inadmissible during the course of pre-trial argument. She said that to the best of her recollection, the evidence was ruled to be not relevant to the issues at trial. Presumably, this was a further explanation of why she had not called witnesses to attest to the deceased's violent and erratic tendencies when drunk or affected by drugs. 146Trial counsel explained that she was concerned with asking questions of witnesses where she was aware that prejudicial material would be elicited and that she advised the appellant " of the effect of asking questions that inferred his good character and the consequences that might flow ". According to trial counsel, she was concerned as to the appellant's temperament and what the consequences would be if questions were asked that inferred the appellant's good character. 147With respect to trial counsel, this involved a confusion of legal issues. The appellant wanted to agitate the deceased's tendency to be violent and irrational when affected by alcohol and/or drugs. Evidence of that would not have inferred the appellant's good character with the attendant risk of opening up the issue of his bad character. The appellant's evidence 148As I have indicated, the appellant denied that he gave instructions not to tender the Service records or had agreed that they not be tendered. Indeed, his evidence was to the contrary, namely, that at all times he stressed to his legal advisers the importance of having evidence before the jury of the deceased's psychotic and violent behaviour. In support of the appellant's version, one of the appellant's handwritten notes of instructions to trial counsel was tendered on the appeal. It stated: "Lithgow mental health records in as a business statement. (With last entry edited out)" (Exh F on the appeal) 149In further support of his denial that he gave any such instructions, the appellant relied, inter alia, upon the fact that there was no note of any instruction to that effect. He pointed out that, in acting on his behalf, trial counsel had insisted on his giving written instructions in respect of matters he had wanted to raise and in respect of forensic decisions made in the conduct of the defence. Trial counsel gave evidence that she dealt with those notes by putting a line through them when a particular instruction had been dealt with. However, no written instruction was produced from the appellant that he had agreed that the Service records not be tendered. The appellant submitted that it would be highly unlikely that trial counsel would not have obtained written instructions from him in respect of such an important matter. 150The appellant also said he was always determined that Dr Westmore be called as a witness in his case. He pointed out that he was aware, from Ms Quinn's trial, of the need to properly prove the deceased's mental instability and had sent an instruction to trial counsel at trial about this, which stated: "Judge Bell said to [counsel at Ms Quinn's trial] that questions relating to [schizophrenia] and mental illness had to be sourced from experts. This was raised in our cross examination of Darren Harvey who in his statement to police said [[the deceased] has been diagnosed with [schizophrenia]] Judge Bell objected when [counsel at Ms Quinn's trial] asked Darren about this. We may need to consider Dr Westmore as a witness or subpoena staff members from the Lithgow Mental Health Service. I think its important to establish [the deceased's] mental instability." (Exh D on the appeal) 151The appellant had a different recollection as to trial counsel's explanation for not calling the witnesses to give evidence of the deceased's violent and erratic behaviour. He said that trial counsel said to him: "I want a softly-softly approach" and "We have to be careful about probing witnesses about the deceased's violence. It would open the doors for the DPP to introduce relationship evidence back into the trial." 152Trial counsel denied having made either of those comments. 153The appellant also denied that he gave the name of eight persons to Mr Parkinson who could give evidence of the violent behaviour of the deceased. He said that the list of possible witnesses to the deceased's violence that was contained in Mr Parkinson's file notes was a reference to the people referred to in Dr Westmore's report, all of whom he said gave descriptions of the deceased's violent behaviour. 154Mr Parkinson's file note (Exhibit C on the appeal) contained a list of 11 names, which, save for two names, corresponded with the list of persons referred to in Dr Westmore's report. This tends to support the appellant's version of this aspect of the evidence, but not conclusively so. However, there is other material that tended to indicate that the appellant's recollection on this issue is more accurate than trial counsel's. In particular, there is a significant correspondence between the appellant's evidence, that trial counsel warned him that relationship evidence would be brought back into the trial and counsel's statement that evidence of the appellant's violent relationship with certain of these witnesses was excluded in a pre-trial ruling. Reliability of trial counsel's evidence 155As I have indicated, the appellant submitted that trial counsel's evidence was unsatisfactory. A number of bases were advanced to support this submission. The most significant related to her evidence that the appellant gave instructions not to tender the Service records, or agreed that they not be tendered. I have already referred to the appellant's evidence in support of his version that that he instructed trial counsel to tender the Service records and that he denied he gave instructions to the contrary. 156The appellant also drew attention to the absence of any reference, in trial counsel's 2 March 2010 affidavit, to statements made by the Crown prosecutor that if the defence tendered the Service records, the Crown would call hospital staff to give evidence about the contents of the notes. The appellant submitted that if this had occurred, or was considered to be of any importance, it would be expected that trial counsel would have referred to it in her first affidavit. 157For myself, I would not place much, if any, importance on this omission in the first affidavit. Trial counsel was being asked about a trial that had occurred some five years previously. In addition, at the time that she swore her first affidavit, not all the records of the Crown had been located. However, the other matters to which I have referred indicate that the appellant's recollection may be more reliable on the question whether he had instructed trial counsel not to tender the Service records. Deficiencies in conduct of trial 158Quite apart from the challenge to the reliability of trial counsel's evidence, the appellant contended that there were deficiencies in her conduct of the trial that resulted in the trial miscarrying. The failure to tender the Service records, regardless of instructions, was critical to this submission. In addition the appellant criticised the manner in which trial counsel had cross-examined Mrs Muldoon. He submitted that whilst it might be expected that Mrs Muldoon would be supportive of her grandson, that was no reason, having regard to the contents of the Service records and, in particular, the reference in them that Mrs Muldoon was a little afraid of the deceased, not to challenge Mrs Muldoon in cross-examination on the deceased's violent and erratic behaviour when under the influence of alcohol or drugs. 159The appellant also submitted that trial counsel's assessment of the evidence that the other witnesses might give as to the deceased's violent and erratic behaviour was a significant underestimation of the evidence likely to be available. For example, in cross-examination of Mr Harvey and Mr Selmes, trial counsel had obtained affirmative responses to her questions as to the deceased's violent and erratic behaviour. Given the statements that witnesses had given to police and which had been provided to Dr Westmore, the appellant submitted that it was at least possible, if not likely, that evidence of the same type would be elicited from such witnesses. 160According to the appellant, the result of not adducing such evidence meant that the jury had been left without critical evidence of the deceased's mental state and violent tendencies. The appellant submitted, apart from any evidence that he might have given, had he been called, the defence case had only two things to support it. The first was Ms Quinn's admission to C, if it was accepted in its entirety, in which case the appellant would have been exonerated altogether. The second was the available material as to the deceased's violent and erratic tendencies, particularly as recorded in the Service records, but also available in the other material to which I have referred. 161The appellant submitted that the failure to tender the Service records, in particular, meant that the appellant was deprived of half of the case that could have been put in his support. In addition, the failure to cross-examine Mrs Muldoon as to the reason for the deceased coming under the care of the Service in October 2001, was that the jury had been left with the impression that the deceased had gone to the hospital on that occasion because of a stomach ache. Legal principles governing counsel's conduct of a trial 162Although the appellant submitted that trial counsel was an unsatisfactory witness, a submission which I have accepted in respect of the reliability of some of the evidence, it is also important to understand the extent to which evidence of a trial counsel as to why a trial was conducted in a particular way is relevant to the central question, which is whether the trial has miscarried. As Hayne J stated in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [104]: "The miscarriage being said to lie in the fact that some evidence could have been, but was not, placed before the jury, the ultimate question will be whether the jury would have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it. (I leave aside the debate revealed in Mickelberg v The Queen about whether the test is better expressed as 'likely to entertain a reasonable doubt' or 'significant possibility of acquittal'. I adopt the former expression only for ease of reference.)" (citations omitted) 163In determining this question, it is of assistance to understand that the question, whether a miscarriage arose due to counsel's conduct of the trial, arises independently of any irregularity in any of the procedural aspects of the trial, or misdirection by the trial judge, or of the verdicts being unreasonable or unsupported by the evidence; or any alleged error of law by the trial judge. 164The application of the principle also requires an understanding of the nature of a criminal trial and the role of counsel in the trial. A criminal trial is an accusatory and adversarial process. The prosecutor and the accused's legal representative play their respective roles in that process by deciding " the ground on which the trial will be fought and the evidence each will lead ": TKWJ per McHugh J at [74], Hayne J at [106]. 165In the usual case, a party is bound by the way counsel has presented the case. In this regard, counsel is the client's agent and is usually instructed on the implied understanding that counsel is to have control over the way the case is conducted. As McHugh J noted in TKWJ , at [74], the discretion retained by counsel in the running of the case is very wide. Decisions have to be made in the course of the conduct of the trial, many of them difficult, and in respect of which minds might differ upon the preferred course to take. Accordingly, it is not relevant, or not necessarily relevant, to inquire whether counsel followed instructions: see McHugh J in TKWJ at [79]; Hayne J at [106]. 166Because the question in issue is whether there has been a miscarriage of justice, when the ground of appeal relates to the conduct of counsel, attention is drawn to the result of the trial. This was explained in TKWJ . For example, Gaudron J, at [26], pointed out that the question whether there has been a miscarriage of justice is usually answered by asking whether the accused person was deprived of " a chance of an acquittal that was fairly open ". The test is an objective one. Gaudron J explained this at [31]: "As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like." (emphasis added) 167Her Honour pointed out, at [33], that where it is claimed that a miscarriage of justice was a result of a course that was taken at the trial, the appellant must establish that that course was not the result of an informed or deliberate decision. Her Honour continued: "This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question." 168Hayne J also stressed that the essential condition for determination was whether there had been a " miscarriage of justice " and that consideration directed attention to the result of the trial. His Honour stated, at [103]: "There being no defect in the instructions given to the jury, and no defect in the procedures followed at trial, the question of 'miscarriage of justice' must in this case direct attention to the result of the trial. It is not enough to say, as the appellant submitted, that there was some procedure available at trial for deciding a question of admissibility of evidence which was a procedure trial counsel for the appellant did not invoke. That is significant only if it affected the result of the trial. Thus, if there is a miscarriage of justice, it lies in the fact that some evidence could have been, but was not, placed before the jury." 169McHugh J, at [77], also stressed the necessity of focusing upon the outcome of the trial: "..in - perhaps the majority [of cases]- the conduct of counsel - although irregular - will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person." (citation omitted) 170However, in a passage relied upon by the appellant, his Honour also considered, at [78], that it is not always necessary to show that the conduct of counsel resulted in an unfair trial. His Honour said, at [79]: "The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, 'whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue'. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, 'it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence'. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial." (citations omitted) (emphasis added) 171To this extent, his Honour's approach to the question was different from that of Gaudron and Hayne JJ. Gummow J agreed with each of their Honour's judgments. 172The principle that applies when the complaint relates to counsel's conduct at trial was considered again in Nudd v R [2006] HCA 9; 80 ALJR 614. In that case, Gleeson CJ, at [10], stated that as a general rule, the focus in determining whether there has been a miscarriage of justice should be on the objective features of the trial. His Honour considered, however, that there may be circumstances where it is relevant to know why some act or omission in the conduct of the trial occurred. In this regard, his Honour considered that it might be relevant to know whether a particular course was taken upon the client's instructions. As his Honour said, " the possibility of a need to know the reason for conduct cannot be eliminated altogether ". However, his Honour emphasised throughout his reasons the importance of the objective nature of the standard to be applied. His Honour further stated: "[15] Because of the impossibility of predicting every form of misfortune or error that may result in a miscarriage of justice; because there are cases where an understanding of why something happened, or did not happen, may be material to a conclusion as to whether there was unfairness; and because such an understanding may reveal that there is no explanation for what occurred other than counsel's ineptitude or inexperience, courts of criminal appeal do not overlook the possibility that the conduct of counsel may result in such a failure of process that there is a miscarriage. ... [19] The description of conduct as an 'error', and the characterisation of something that happened as "unfair", could in some circumstances turn upon knowledge of why something was done or omitted, and this, in turn, might reveal a departure from standards of professional duty. As Lord Carswell said in Teeluck v Trinidad , there may be rare cases in which counsel's misbehaviour or ineptitude is so extreme as to constitute a denial of due process to the client. McHugh J gave two examples in TKWJ v The Queen : cases where, for no valid reason, counsel fails to cross-examine material witnesses, or does not address the jury. (I take his Honour to have been referring to cases where there is no rational explanation of counsel's decision; not to cases where an appellate court simply thinks it was unwise to fail to cross-examine ..." 173In their joint judgment, Gummow and Hayne JJ, at [24], stated that the question whether there was a miscarriage of justice: "... requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial." (citations omitted) 174Their Honours pointed out, at [25], that an appeal against conviction must ultimately focus upon the trial and conviction of the accused person. Their Honours defined the relevant question to be answered in terms, " Was what happened, or did not happen, at trial a miscarriage of justice? " Their Honours stated, at [27], that the enquiry is an objective one: " the critical inquiry is what did or did not happen at trial, not why that came about ". 175Kirby J endorsed the alternative " fair trial " approach indicated by McHugh J in TKWJ . 176Callinan and Heydon JJ also referred to a fair trial. After noting that in TKWJ , Gaudron J and Hayne J considered that the inquiry as to the conduct of the trial was an objective one and whether, so viewed, as Gaudron J stated, " the course taken by counsel was capable of explanation ", their Honours continued, at [158]: "In this case, on any assessment, whether subjective or objective, counsel's conduct was incompetent to a serious degree ... That is not however the end of the matter. Was the appellant's trial a fair one in all of the circumstances? Did justice miscarry to the extent that the appellant was deprived by his counsel's conduct of a chance of an acquittal? In answering these questions, we keep in mind that the more apparently serious the offence, the greater the need there generally will be for punctiliousness in all respects in the conduct of the trial." Appellant's submissions on the appeal 177The appellant accepted that, in considering whether there had been a miscarriage of justice it was appropriate to commence from the premise that the decision as to whether or not to adduce evidence and, in particular, to tender the Service records was a decision for counsel, regardless of the instructions he had given. He said, however, that a consideration of trial counsel's evidence was of assistance in determining whether or not the forensic decisions she made were objectively reasonable, or, to use the language of TKWJ , " there could have been a reasonable explanation for not calling the evidence ". 178As I have already indicated, there was no issue as to the admissibility of the Service records. Assuming relevance, they were admissible as business records. In my opinion, the Service records were relevant to the appellant's case, insofar as they supported C's evidence and the appellant's case on provocation. The Crown did not contend otherwise. Their importance to the appellant's defence is highlighted by the fact that there was no other medical evidence relating to the deceased's mental health and the manner in which that affected his conduct. 179On the assumption that the Court's concern is as to what happened and not why it happened, the next relevant question is whether, as a result of the Service records not being tendered, the appellant lost an opportunity of an acquittal that was fairly open. That question cannot be answered immediately because the other matters upon which the appellant relied remain to be considered, all of which was directed to the one issue, namely, the deceased's potential to be violent and irrational when affected by alcohol and drugs. 180However, before considering that other material, it is convenient to consider at this point whether this may be one of those cases where trial counsel's reasons for not adducing the Service records is relevant. In this regard, the appellant only relied upon trial counsel's reasons to the extent they cast light on the question, whether upon an objective assessment of the material, there was any reasonable basis for not tendering it. It will be recalled that trial counsel's principal reason for not tendering the Service records was that the Crown prosecutor informed her that if she did so, the Crown would call witnesses from the Hospital to give evidence as to the contents of the Service records and, in particular, the reference to " dangerous " behaviour meaning dangerous to the deceased himself. 181Assuming that the Crown called such evidence, the Service records would still have been evidence that the deceased had a drug induced psychosis; was probably schizophrenic; that there was a report of " bizarre/dangerous [behaviour] "; that he had come under the care of the Service on a number of occasions for mental health reasons; and of Mrs Muldoon having stated that she " felt a little afraid of [the deceased] due to his violence and erratic behaviour at times ". In my opinion, trial counsel's concerns do not provide a reasonable explanation for not tendering the Service records in circumstances where evidence as to the appellant's mental state and consequent behavioural tendencies was a central plank of the appellant's defence. 182It is convenient to deal next with the failure to cross-examine Mrs Muldoon as to the deceased's violent and irrational tendencies. In this regard, the sequence in which evidence would have been adduced needs to be kept in mind. Mrs Muldoon was a Crown witness and her evidence would have been given prior to the Service records being tendered in the defence case. In the manner in which she was cross-examined, Mrs Muldoon had denied, or at least downplayed any mental health or drug or alcohol issues that the deceased had. She also had explained that the deceased had gone to hospital in October 2001 because of some stomach problem. That evidence made the tender of the Service records even more critical. 183In dealing with the particular complaint made in respect of the failure to cross-examine Mrs Muldoon, therefore, it should be assumed that trial counsel intended to tender the Service records in the defence case. It should also be assumed Mrs Muldoon would be protective of her grandson's reputation and in particular that she would maintain, as she had said in conference with trial counsel, that she had said to the Probation and Parole officer she was a little afraid " for " the deceased, not " of " the deceased. 184When a witness' evidence critically touches an issue in the trial, a mere concern that a concession in cross-examination may not be forthcoming from the witness is not a reasonable explanation for failing to cross-examine. On the assumption that the Service records were in evidence, a failure to cross-examine Mrs Muldoon on their contents would, almost certainly, have been the subject of adverse comment by the Crown to the jury. Accordingly, on an objective assessment, there was no reasonable basis for not cross-examining Mrs Muldoon on the issue of the deceased's violent propensities and her involvement with the deceased's care, as stated in the Service records. 185I am also of the opinion that trial counsel's reasons as to why she did not cross-examine Mrs Muldoon do not withstand scrutiny and this may well be one of those cases, referred to by Gleeson CJ in Nudd , where it is material to know why a particular course was taken. If the subjective reasons do not withstand scrutiny, that may support the objective assessment that there was no reasonable basis for not taking a particular course at the trial. 186The principal complaint in relation to the cross-examination concerned the entry in the Service records that Mrs Muldoon said that she was " a little afraid of [the deceased] ". Trial counsel seemed to have accepted that what Mrs Muldoon had said at interview was correct, or would be her evidence, if cross-examined. But even on that version, Mrs Muldoon had not denied the reference to violence. Thus, a concern for him because of his violence would still mean that at least some history of the deceased's violence was in evidence. 187Further, the Service records made other references to Mrs Muldoon's involvement in relation to the deceased's admissions. There were references to the possibility that his accommodation with her might be at risk if his behaviour continued, and that she had noticed a decline in him in the preceding six months before his first admission. There was also a reference to Mrs Muldoon being encouraged to remain firm with the deceased, taking care not to provoke him. A concern as to provocation is often, if not usually, accompanied by a concern about violence. This could have been explored in cross-examination. Accordingly, even had Mrs Muldoon denied or minimised the deceased's mental health and associated alcohol and drug problems, it is unlikely that such denials would have been fully accepted by a jury. 188The question as to the calling of Dr Westmore and the various witnesses as to the deceased's violent behaviour can be considered together. According to the summary of the witness statements in Dr Westmore's report, the common thread in the statements was that the deceased had drug and alcohol problems. The only reference to violence in any of the statements came from Mr Harvey, who gave evidence, and Ms Walker. Leaving aside Ms Walker, given that there was no reference to violence in the statements of those persons, I am of the opinion that it was not unreasonable for trial counsel not to call the other persons referred to in Dr Westmore's report. There was already evidence before the court of the deceased's drinking and alcohol problems. These witnesses, at best, would only have confirmed that evidence and there was a risk that they would not have done so, having regard to what they had said in conference with the appellant's solicitor. 189That left as the only apparent evidence of violence, any evidence that Ms Walker might give if called as a witness. According to trial counsel, Ms Walker said she would say that her statement to the police was untrue. Information of this nature would have posed some difficulties for a trial counsel deciding whether to call such a person to give evidence. The knowledge that Ms Walker had caused an AVO to be made against the deceased may not have advanced matters. Ms Walker may have denied knowledge of it or explained it away as relating to something other than physical violence, such as harassment or stalking. Having regard to those matters, it could not be said that there was no reasonable explanation for the failure to call Ms Walker, nor could that failure be characterised as an irregularity that affected the result of the trial. 190This places the significance of Dr Westmore's report on a less solid foundation than might have been the case had there been witnesses to the appellant's violence or had Mr Harvey, in cross-examination, not downplayed the deceased's violent and erratic tendencies. It is apparent, from Dr Westmore's comment in the final paragraph of his report (see [127]) that his assessment of any possible violent tendencies of the deceased was dependent upon the histories contained in the statements of the other potential witnesses. As Dr Westmore indicated, if those histories were borne out, they might provide support for the appellant's version of what happened as provided to him. On the assumption that the witnesses were not called Dr Westmore's comment in the final paragraph of his report was unlikely to have had much traction with the jury, even assuming that it was admissible. In addition, Dr Westmore had reached his diagnoses of the deceased on a provisional basis only, given that he had not had the benefit of making a clinical appraisal of the deceased himself. 191There is a real question, in any event, as to whether the opinion expressed in the final paragraph of Dr Westmore's report, which, as I understand the appellant's case, he would have sought to rely upon, would have been admissible. In the first place, it is doubtful whether the statement in the final paragraph qualified as a statement of an expert: see HG v R [1999] HCA 2; 197 CLR 414; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705. In Makita , Heydon JA (as his Honour then was) stated, at [85], so far as is relevant to this case: "... if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated ... the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge' ... so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way ..." 192His Honour's statement reflected what had earlier been said in HG where Gleeson CJ, at [41], said that expert evidence: "... required identification of the facts [the expert] was assuming to be true, so that they could be measured against the evidence; and ... demonstration or examination of the scientific basis of the conclusion." 193The approach to s 79 in HG and Makita was approved by the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21, with an explanation of how the section operates in a case of a well-accepted area of expertise. The High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said, at [37]: "It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles ) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act ... Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita , that 'the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded'." (citations omitted) 194It is also relevant in this case, when considering the admissibility of Dr Westmore's opinion, expressed in the last paragraph of his report that an expert's opinion must be supported by evidence, although it is not necessary that the evidence adduced at trial corresponds precisely with that upon which the opinion is based: see Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844. 195However, in this case, trial counsel would have been confronted with two problems if Dr Westmore was to be called to give evidence. The first was that there was not much independent evidence to support the proposition that the deceased was violent when drunk or affected by drugs. Mr Harvey modified his evidence in relation to any threat of violence from the deceased, as compared to the statement relied upon by Dr Westmore. And, as I have indicated, I consider that it could not be said that there was no rational basis for not calling Ms Walker. 196However, even if I am wrong about that, it cannot be assumed that Ms Walker would have given evidence of the kind that Dr Westmore summarised in his report. Nor can it be assumed that evidence of the AVO would have been forthcoming or particularly supportive of a case based on a proclivity of the deceased to actual violence. Accordingly, it can be accepted that even if called as a witness, Ms Walker's evidence may not have had sufficient correspondence with that upon which Dr Westmore relied. It follows that the weight of any admissible evidence Dr Westmore may have given in relation to the deceased's violent tendencies is likely to have been diminished in any event. 197The second problem that would have confronted counsel is a more fundamental one and is the one to which the principle in Makita is directed. As I have indicated, the essential point the appellant wanted to establish from Dr Westmore's evidence was the probability of the deceased having become violent whilst drinking with the appellant on the 22 March 2003. 198It is not immediately apparent that Dr Westmore's opinion in the final paragraph of his report (set out at [127]), was admissible as an expert opinion. In particular, it is not apparent from the report that that opinion was " wholly or substantially based on the witness' expert knowledge ": Makita at [85]. It was not suggested, for example, that a person with a mental illness such as schizophrenia would thereby be a person with violent tendencies. Dr Westmore's 'opinion' appears to be no more than an observation to the effect that a history of past violent behaviour when the deceased had been affected by drugs and alcohol, provided support for the appellant's version of events that he was violent on this occasion. Such evidence would not, in my opinion, qualify as expert evidence. 199In any event, such an opinion was an assessment of a tendency, which in itself had implications for its admissibility, a factor upon which the Crown relied. Tendency evidence is governed by the Evidence Act , s 97 which provides relevantly: " 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: ... (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 200The Crown submitted that Dr Westmore's opinion, in the last paragraph of his report, was arrived at without having made a clinical assessment of the deceased and was based on untested material provided to him. It further submitted that given the cautionary manner in which the opinion was stated, it did not have " significant probative value " for the purposes of s 97(1)(b). 201I have already discussed the limited extent of material that supported the contention that the deceased was violent and erratic when drunk or affected by drugs. In my opinion, given the absence of any, or any significant, supportive evidence, it is unlikely that Dr Westmore's evidence of the deceased's likelihood of having become physically violent towards the appellant would be accepted as having " significant probative value ". It is unlikely, therefore, that that aspect of Dr Westmore's evidence would have been admissible. Conclusions as to the evidence 202The position I have reached in relation to the evidence that the appellant contended ought to have been adduced and the cross-examination of Mrs Muldoon that ought to have been undertaken, therefore, is as follows. I have concluded that there was no reasonable explanation for the failure to tender the Service records or for not cross-examining Mrs Muldoon, particularly in respect of the entry that she had said that she was afraid of the deceased's violent and erratic behaviour. 203I consider that there was a reasonable explanation for not calling the witnesses who were said to be able to give evidence of the deceased's violent behaviour, as an analysis of their statements does not support that they would give such evidence. It is unlikely that Dr Westmore could give admissible evidence as to the likelihood of the deceased becoming violent towards the appellant on the occasion when he was murdered. Although his provisional diagnosis of drug and alcohol problems and possible schizophrenia would have been admissible, that opinion was only confirmatory of what was in the Service records. That was not the essential reason for the appellant wanting Dr Westmore called to give evidence. Was there a miscarriage of justice? 204Having regard to these conclusions as to the evidence that should have been before the jury, the question that has to be answered is whether the failure to tender the Service records and to cross-examine Mrs Muldoon on the issue of the deceased's violence resulted in a miscarriage of justice. In other words, would a jury have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it? 205Had the Service records been tendered, then, in summary, the evidence before the jury would have been as follows. There was C's evidence that Ms Quinn had said that she struck the blow to the deceased's head and that as she did so the deceased was attacking the appellant. The references to violence and erratic behaviour in the Service records may have provided some support for this evidence. As explained earlier, C's evidence was not supported by the forensic evidence. A part of C's evidence as to what Ms Quinn had told her was contradicted by the forensic pathologist, viz : " blood was spurting from his head ". At one point in her evidence, C was also uncertain as to what Ms Quinn had told her as to who hit the deceased with the axe. There was also evidence that the appellant was a larger man than the deceased, which may have caused the jury to consider that it was unlikely that the deceased had overpowered the appellant, as Ms Quinn's alleged admission intimated. Accordingly, there was cogent independent evidence indicating that C's evidence was unlikely to be true. 206There was also Ms Quinn's evidence that the deceased had started to be irrational after he had been drinking for a while. The references in the Service records to the deceased having illogical thinking may also have provided some support for this evidence. However, it was also Ms Quinn's evidence that it was the appellant who used both the baseball bat and the axe and delivered all the blows to the deceased's head after the deceased started to be irrational and called the appellant a " rock spider ". Although the jury was not bound to accept Ms Quinn's evidence, it is unlikely that they would not accept her evidence if they rejected C's evidence. 207As to the failure to cross-examine Mrs Muldoon, assuming that she maintained that the deceased had been admitted to hospital in October 2001 because of a stomach problem, it is unlikely that her evidence would have been believed, given the contents of the Service records. However, this would not have advanced the defence very far. 208Accordingly, notwithstanding the manner in which the trial was conducted, the appellant has not established a miscarriage of justice. In reaching this conclusion, I have excluded as a relevant omission the failure to call the appellant to give evidence, as no such omission was relied upon on the appeal. 209It follows, in my opinion, that ground 5 of the appeal should be rejected. Ground 6: The prosecution was not entitled to rely on a case against the appellant based on a joint criminal enterprise with Ms Quinn, given her acquittal of the offence of murder prior to the trial of the appellant 210The appellant submitted that the prosecution case based on joint criminal enterprise contravened the principle of incontrovertibility and was thus an abuse of process. He contended that as such, it resulted in a departure from trial according to law and consequently resulted in a miscarriage of justice. 211The starting point for this submission was that Ms Quinn's trial for murder was based upon a joint criminal enterprise with the appellant and that she was found not guilty. The appellant submitted that Ms Quinn's acquittal meant that there was no joint criminal enterprise between Ms Quinn and the appellant to murder the deceased: Washer v The State of Western Australia [2007] HCA 48 per Hayne J at [113]. 212The appellant contended that the consequence of bringing a case that he was guilty of murder on the basis of a joint criminal enterprise with Ms Quinn had the effect of seeking to controvert her acquittal and that was proscribed by the principle of incontrovertibility. The appellant contended that the principle of incontrovertibility is not limited by a precondition that the issue must arise as and between the same parties: cf the doctrine of issue estoppel in civil proceedings. 213The appellant submitted that the joint criminal enterprise alleged in his trial was manifestly inconsistent on the facts with Ms Quinn's acquittal. He contended that the joint criminal enterprise case relied upon in his trial sought to retry the issue that was central to Ms Quinn's trial for murder. 214In my opinion, this ground of appeal fails for two reasons, one of fact and one of principle. 215As to the question of fact, it is necessary to understand the basis of the Crown case against Ms Quinn. Ms Quinn ' s trial 216On 27 September 2004, Ms Quinn was indicted before Bell J on one count of murder and one count of intent to pervert the course of justice by the acts of disposing of the body of the deceased and cleaning the premises where he was murdered. Ms Quinn pleaded not guilty to each count. The appellant was indicted at the same time before Bell J on identical counts. As already indicated, the appellant pleaded not guilty to murder but guilty to the count of doing acts with intent to pervert the course of justice. The trial proceeded as a joint trial until 29 September 2004, when Bell J ordered separate trials and the jury was discharged from giving verdicts in respect of the appellant. Ms Quinn's trial continued before Bell J. 217In Ms Quinn's trial, the Crown case was that Ms Quinn had struck the deceased on the head with the axe with an intention to kill or to inflict serious harm. The injury thus inflicted was injury number 1 and, on the evidence of Dr Little in Ms Quinn's trial, was a potentially fatal injury. Initially, it was the Crown case in Ms Quinn's trial that the other injuries had been inflicted by Mr Cooper with the baseball bat and that injury number 4 was also potentially fatal. 218The appellant contended that the case put to the jury in Ms Quinn's trial was one of joint criminal enterprise. 219The Crown submitted that the prosecution case against Ms Quinn was not based upon any agreement with the appellant to kill or seriously injure the deceased. The Crown pointed out that although in her instructions to the jury in Ms Quinn's case, Bell J used expressions including " joint attack " and " joint assault ", at no time did her Honour use the expression " joint criminal enterprise ". In particular, her Honour did not, according to the Crown, use that phrase in her summing up to the jury, nor did she give any direction to the jury explaining the concept of joint criminal enterprise. 220The Crown also submitted that there was evidence in Ms Quinn's trial upon which a jury might well have based their decision to acquit her. In particular, the case against Ms Quinn was based solely upon the evidence of C. Ms Quinn gave evidence in her defence. Her evidence was the same as she gave in the appellant's trial, namely that the appellant, unprovoked apart from the deceased calling him a " rock spider ", hit the deceased with a baseball bat a number of times and then a little later hit him with the axe. 221The Crown submitted that if the jury did not accept the truth and accuracy of the admission that C said Ms Quinn made to her, then, inevitably, there would have been an acquittal. The Crown pointed out that in Ms Quinn's trial, C had not given her evidence with any great certainty. In cross-examination, C stated that she was " pretty sure " she had a conversation with Ms Quinn in relation to the blood on the ceiling and how it got there. She conceded, however, that she could have had that conversation with the appellant. 222In re-examination in Ms Quinn's trial, C said that all that she could remember was Ms Quinn telling her that the deceased and the appellant had had a fight and " then there was an axe and -- and he got hit with the axe ". She said she was " pretty sure I heard [Ms Quinn] say she was the one that hit [the deceased] with the axe ". When asked to recount the conversation she had with Ms Quinn as best she could, C said, " I don't know, I can't remember ... I don't even know if it was [Ms Quinn] or [the appellant] telling me any more ". 223The Crown submitted that having regard to this evidence, it was possible that the jury could not be sure whether it was Ms Quinn or the appellant who relayed to C the information about the axe being used. If that were so, they could not be satisfied that it was Ms Quinn who had used the axe. The Crown also submitted that it was possible that the jury was not satisfied that Ms Quinn had the necessary intent for murder or might have considered that she had come to the appellant's aid. 224The point of the Crown's explanation of possible reasons for Ms Quinn's acquittal was to demonstrate that there were bases in the evidence for an acquittal, but that the acquittal was not based upon the rejection of a case based on joint criminal enterprise, because no such case was run. 225An examination of the transcript of Ms Quinn's trial confirms the Crown's submission that Ms Quinn's trial was not based on a joint criminal enterprise with the appellant. At the conclusion of the evidence on 7 October 2004, Bell J asked the Crown and Ms Quinn's counsel what directions to the jury they considered were required. Her Honour also raised with the Crown prosecutor " the way the Crown puts liability for murder ". The Crown prosecutor responded: "Your Honour, if she didn't hit him, we haven't proved it ... Is that put simply enough your Honour?" 226After further discussion with his Honour, it was apparent that there was more complexity in the Crown case than encompassed in that response. The Crown said that the case was one of joint assault in which two significant injuries had been inflicted, that is injuries number 1 and 4, each of which had the potential to be fatal. The Crown indicated to her Honour that the jury did not have to be satisfied as to which blow was the fatal one. The Crown then stated that its case was one of " joint criminal liability " in respect of which both Ms Quinn and the appellant were liable as principals. 227Her Honour indicated that, in addition to directing the jury that Ms Quinn had inflicted the fatal blow, she would give an alternative direction that there was a " joint assault " involving Ms Quinn and the appellant; that Ms Quinn participated in that assault by striking the deceased with an axe; and that the joint assault reflected an understanding, albeit tacit, that " at least grievous bodily harm would be inflicted ". Both the Crown prosecutor and Ms Quinn's counsel accepted that this was an appropriate direction to be given to the jury. Such a direction would have been a direction that Ms Quinn and the appellant had engaged in a joint criminal enterprise. 228The terms of the directions were not finalised at that stage and the matter was adjourned to 11 October 2004. When the matter resumed on that day, her Honour again raised the question of the directions to be given to the jury. She handed to the Crown and Ms Quinn's counsel a copy of written directions she was proposing to give to the jury. Her Honour referred first to the direction she proposed to give in relation to the Crown case that Ms Quinn had delivered a blow to the head with the axe which substantially contributed to the deceased's death. 229Still in discussion with counsel, her Honour turned to the alternative basis upon which she understood that the Crown put its case and said: "... you will see that I have set out the elements including that both [Ms Quinn] and [the appellant] had an intention in participating in the assault, to kill or to inflict grievous bodily harm on the deceased, together with [Ms Quinn's] knowledge of what it was that [the appellant] was doing and her awareness that he was possessed of that intention." 230After raising an unrelated issue, her Honour continued: "... I take it Mr Crown, it is the Crown's wish to leave it also on the alternative basis of a joint assault in respect of which she aided and abetted [the appellant]." (emphasis added). The Crown prosecutor responded: "It is at this stage your Honour but I may say this, as I reflect on what I say, I reflect on what my friend says, I may again -- or your Honour may feel inclined to revisit the matter even if I don't raise it with your Honour." Her Honour responded " yes " to this statement. 231As I understand this submission and her Honour's affirmative response, the Crown prosecutor was indicating that if he did not take up in his address to the jury the alternative basis that had been discussed, he would expect that her Honour would not direct the jury on any alternative basis. In his address to the jury, the Crown prosecutor did not suggest that there was any alternative basis upon which Ms Quinn's guilt should be considered, nor did Ms Quinn's counsel direct attention to any alternative case. 232In her Honour's summing up to the jury on 12 October 2004, she directed the jury as follows: "Turning then to the first count which is the charge of murder. The way the Crown puts its case is that [Ms Quinn] was involved in a joint assault upon the deceased with [the appellant]. It is the Crown's case that in the course of that joint assault upon [the deceased], [Ms Quinn] struck the deceased to the head with an axe or hatchet thereby occasioning the injury that is described by Dr Little as injury number one, the injury to the top of the head to the right of the midline or centre line of the head. It is the Crown case that that injury significantly contributed to the death of the deceased and that at the time [Ms Quinn] struck him to the head with the axe or hatchet, she intended either to kill him or to do him grievous bodily harm. That is the way the Crown puts its case ... The elements of the offence of murder that the Crown must prove beyond reasonable doubt are firstly, that the deceased died as a result of head injuries inflicted with blunt force during the course of an assault on him. Secondly that the accused inflicted one or more of the injuries that caused the death of the deceased by striking him on the head with an axe or hatchet. And I emphasise that is the Crown case. If you are not satisfied that she participated in that assault by striking to the head with an axe or hatchet, the Crown has not proved an element that is essential to proof of its case. The third element is that at the time of striking the deceased with the axe or hatchet, it was the accused's intention to kill or cause grievous bodily harm to the deceased ... Now returning to the elements of the offence and for present purposes to element number two, it is important to understand that the Crown does not have to prove that it was the sole act of [Ms Quinn] that caused the death of the deceased. It is, as I have emphasised, the Crown case that this was a joint assault and that [the appellant] struck a blow or blows to the head of the deceased, it is the Crown case that [the appellant] struck the blow that caused injury number four and as I have said to you, that was first in time and according to Dr Little, itself a potentially fatal injury. It is sufficient for the Crown to prove that [Ms Quinn's] act in striking the deceased to the head with an axe or hatchet, significantly contributed to his death. The concept of significantly contributing to death includes the concept of accelerating the process of death if you were to consider that had been put in train by [the appellant] with the first blow that caused injury number four. The only evidence that is capable of establishing that [Ms Quinn] was involved in the infliction of any of the fatal violence on the deceased, is the evidence of [C] and that is [C's] evidence that sometime on the afternoon of Sunday 23 March ... [Ms Quinn] said to her words to this effect, '[the deceased] came around and him and [the appellant] started having a fight and then she got the axe and hit him with the axe'. I am there quoting [C's] evidence of what it is she said [Ms Quinn] told her. She went on to say that she had asked [Ms Quinn] about the stains that she observed on the ceiling and that [Ms Quinn] said, 'It was where the blood had spurted'. She was asked if [Ms Quinn] has said what caused the blood to spurt and she replied, 'From where she cut his face with the axe'. I emphasise that there is no evidence apart from [C's] account of that conversation that is capable of proving that [Ms Quinn] was involved in the assault upon the deceased that led to his death. It is the Crown case that you would accept [C] as being accurate in the recall of the conversation and that you would be satisfied beyond reasonable doubt that when [Ms Quinn] said those things to [C] she was being truthful ... The central issue in this case as I am sure you well appreciate members of the jury, is whether the Crown has proved beyond reasonable doubt that it was [Ms Quinn] who struck the deceased with the axe or hatchet. And I will come back to that and remind you a little more fully of the evidence of [C] in due course." (emphases added) 233Her Honour then dealt with the element of intention for the purposes of murder on the basis of the case upon which she had directed the jury. In particular, she directed the jury that: "... where a specific result is the obvious or inevitable consequence of doing an act and a person goes ahead and does the act, you may readily conclude that he or she did the act with the intention of achieving that result." 234The following day, her Honour stated that she had completed her directions in respect of the elements of the offence of murder and then turned to the elements of the offence of doing an act with intent to pervert the course of justice. Her Honour did not, at any stage, give a direction as to any alternative basis of the murder count, either in the terms she had discussed with the Crown prosecutor and Ms Quinn's counsel on 7 and 11 October 2004, that is, that Ms Quinn had aided and abetted the appellant, or in respect of a joint criminal enterprise. There was no mention of pre-concert, or of agreement, or of assisting or encouraging the appellant in the joint criminal enterprise to commit the crime: see Tangye at 556-557 referred to at [66] above. 235Accordingly, the fundamental factual basis upon which the appellant sought to base his argument on incontrovertibility has not been made out. The appellant did not seek to make out any other basis upon which the principle applied and for that reason alone this ground of appeal should be dismissed. 236The Crown also submitted that the principle of incontrovertibility, as it has been expressly developed to date, has not been applied as between different accused. The Crown submitted that this was understandable, because the principle was unlikely to have application as between different accused, as the factual and legal issues in relation to an individual accused in a different trial will necessarily be different. 237This was easily demonstrated, on the Crown's submission, by reference to the requirement that the necessary intention for a particular offence in most cases is subjective. Any verdict in which Ms Quinn's mental state at the time she struck the accused was in issue, could not be binding, in the sense of being incontrovertible, on the question of the appellant's mental state at the time he struck the accused. The Crown also submitted that whilst Ms Quinn was entitled to the full benefit of her acquittal, the appellant was not correspondingly entitled to a benefit from that acquittal. The appellant had not been placed in double jeopardy by being tried for the murder of the deceased on the basis of joint criminal enterprise, in circumstances where another accused had been acquitted of the murder of that person. 238Although the metes and bounds of the principle of incontrovertibility remain undetermined: Gilham v Regina [2007] NSWCCA 323; 178 A Crim R 72 per McClellan CJ at CL at [149], I am of the opinion that the better view is that the principle does not avail a co-accused. Rather, it applies in respect of a later charge against an accused who has been acquitted of another crime. In R v Carroll [2002] HCA 55; 213 CLR 635 Gleeson CJ and Hayne J stated: "[40] There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial." 239In Carroll the accused was acquitted of murder but was later charged with perjury. Their Honours continued: "41 The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent's falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child. 42 In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the respondent's sworn denial of guilt. The alleged false testimony consisted of a negative answer to a question, asked by his counsel, whether the respondent killed the child. The fact that the question asked was whether the respondent killed Deidre Kennedy rather than whether he murdered her, or whether he was guilty, is immaterial. Discretionary decisions do not turn upon such differences. Once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible." 240In the same case, Gaudron and Gummow JJ stated: "86 The interests at stake in a case such as the present ... touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature." (citations omitted) (emphasis added) 241McHugh J considered, at [117], that it was sufficient if, in that case, the subsequent charge for perjury " had a tendency to undermine the respondent's acquittal of an earlier charge of murder ". 242His Honour continued: "118 ... The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal. That is so even though the evidence proving perjury is unanswerable. ... 138 ... For the purposes of the criminal law, the entry of an acquittal on the charge of murdering [the deceased] was a final judicial determination that Carroll did not kill her. Under the common law, that determination could not be directly challenged or undermined in or by any subsequent criminal proceeding." 243A principle stated and explained in these terms does not readily apply to co-accused. That is apparent from the reference to " autrefois acquit " and to the comparison of the elements of the new charge against the verdict of not guilty of the previous charge in the judgment of Gleeson CJ and Hayne J; to the juridical factors underlying the principles referred to by Gaudron and Gummow JJ, at [86], and in particular, the reference to the first and third of those factors; and to the reference in McHugh J's statement, at [118], that an acquittal was not to be contradicted or undermined by a later charge that raises the same issue or issues as were involved in the acquittal. 244There are indications in the authorities that, in addition to the principle of incontrovertibility, a wider principle based upon abuse of process may operate in certain circumstances, where the focus is not upon whether the accused is charged with a later offence, some essential element of which has been determined by an earlier verdict for a different charge. See Rogers v R [1994] HCA 42; 181 CLR 251; Garrett v R [1977] HCA 67; 139 CLR 437. 245However, in Carroll Gleeson CJ and Hayne J noted, at [47]: "Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive." (citation omitted) (emphasis added) 246The appellant did not seek to rely upon some broader principle of abuse of process. Ground 6 was based solely upon the principle of incontrovertibility. The appellant's case on that basis was predicated upon the murder charge against Ms Quinn having been prosecuted on the basis that she was guilty as a participant in a joint criminal enterprise. I have concluded that that was not the basis upon which the jury was asked to determine Ms Quinn was guilty of murder. For that reason alone, this ground should be dismissed. 247I am also of the opinion that there is no support in the authorities for the legal proposition that the appellant advanced, namely, that the principle of incontrovertibility applies as between different accused persons. Nor does any wider principle of abuse of process extend to a case such as this. It is not unusual where there are separate trials of co-accused for one accused to be acquitted and another or others to be convicted. The reason for this is to be found not only in the jury's assessment of the evidence, but, more fundamentally, in the fact that one of the essential elements of the crime in each case, namely, the intention of the accused, is different. This is well explained by the example proffered by McHugh J in Osland , at [79], referred to at [63] above. 248For these reasons, I would reject ground 6. Is this a proper case for the proviso? 249The appellant submitted that if any of his grounds of appeal succeeded then the appropriate order was that there be a new trial. I have concluded that ground 1 should be allowed. However, the Crown submitted that even if any of the appellant's grounds of appeal succeeded this was a proper case for the application of the proviso to the Criminal Appeal Act , s 6(1). Section 6(1) provides: "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. " 250The statutory task to be undertaken in respect of the proviso was considered by the High Court in Weiss v R [2005] HCA 81; 224 CLR 300. Their Honours (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said, at 316-317: "41 That task is to be undertaken in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence[56] and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record[57], the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty ... 44 ... No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. 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. 45 Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there 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." See also Washer per Kirby J at [101]. 251I have already referred to the evidence in some detail and to the competing versions of the attack upon the deceased given by Ms Quinn and by C. The unlikelihood of C's evidence being correct is underscored by Dr Little's evidence. On Dr Little's uncontradicted evidence, there were no fractures and no lacerations to the deceased's face, which was the part of the body that C alleged Ms Quinn had said she had hit. Dr Little also gave evidence that there were no blood vessels in that part of the body from which blood would spurt and therefore spray onto the walls and ceiling. It will be recalled that C not only said Ms Quinn said that blood had sprayed onto the wall and ceiling, but also that she had seen a stain on the wall and ceiling. 252It will also be recalled that Ms Quinn gave evidence that the appellant punched the deceased several times. Ms Quinn's evidence was corroborated in this regard by the evidence of her son, J, who said that he saw the appellant punch the deceased, and also by C and Mr Denne, each of whom said that the following day they noticed the appellant's knuckles were swollen. J's evidence differed in some respects from other evidence given by Ms Quinn, C and Mr Denne, particularly in relation to the time and sequence in which people came and went from the house on the night of 22 March and the following morning. However, those matters were incidental to the events of that night. J's recollection that he saw the deceased being punched was not challenged in cross-examination. 253Dr Little gave evidence that there was no bruising to the deceased's face. That evidence is referred to at [56]. It is not clear from the cross-examination whether the questions were intended to relate to the deceased being hit on the face with an axe or other implement, or whether it related to the deceased being punched. However, the question was cast in terms of the deceased having received "s ignificant blows " to the face, which would seem to indicate that the question was directed to him being hit with an implement. Dr Little's reply would also seem to indicate that that was her understanding. 254The Crown also relied upon the fact that there was no evidence of any defensive injuries on the deceased's body, indicating that the attack upon him occurred suddenly, as Ms Quinn had stated. 255Finally, the Crown relied upon the fact that the evidence suggested that injuries 2-4 and 4 in particular, had been caused by a baseball bat. There was no suggestion in the evidence or in the case advanced by the appellant in cross-examination of Ms Quinn that anybody else had used the baseball bat. The probability was also that a baseball bat was used, given that both Mr Denne and C gave evidence that the handle of a baseball bat was sticking out from the hessian bag the appellant removed from the house and threw onto the fire at the tip. 256In my opinion, when the whole of the evidence is considered, the case that the appellant at least struck the blow that caused injury number 4 is such, that notwithstanding I have concluded that ground 1 should be upheld and that the Service records should have been tendered and Mrs Muldoon cross-examined as explained under ground 5, there has been no substantial miscarriage of justice within the meaning of the proviso to s 6(1). 257Accordingly, I propose that the appeal against conviction be dismissed. 258HIDDEN J : I agree with the order proposed by Beazley JA and with her Honour's reasons. 259As to ground 5, like her Honour, I acknowledge the difficulties faced by trial counsel in giving evidence about tactical decisions made in a trial she had conducted some 5 years previously. In the event, I agree with Beazley JA that the way in which the trial was conducted did not give rise to a miscarriage of justice. 260As to ground 6, I agree that the principle of incontrovertibility was not engaged for the reasons identified by Beazley JA. What the scope of that principle might be is not a matter this court is called upon to decide, and I would prefer not to express a concluded view about it. 261R A HULME J : I agree with Beazley JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2014