Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Grogan v R [2016] NSWCCA 168 Hearing dates: 11 November 2015 Date of orders: 19 August 2016 Decision date: 19 August 2016 Before: Ward JA Davies J RS Hulme AJ Decision: (i) Allow the appeal. (ii) Quash the Appellant's conviction on a charge of murder and the sentence imposed by RA Hulme J on 8 November 2013. (iii) Order that there be a retrial of the Appellant limited to the issue of manslaughter. Catchwords: Criminal law - murder – inferences available – one punch plus theft – substituted verdict not available. Legislation Cited: Crimes Act 1900 NSW Criminal Appeal Act 1912 NSW Cases Cited: Edwards v The Queen [1993] 178 CLR 193 M v The Queen [1994] HCA 63; 181 CLR 487 Mehajer v R [2014] NSWCCA 167; 244 A Crim R 15 Penza and Di Maria v R [2013] NSWCCCA 21 R v Cook [2004] NSWCCA 52 R v Grogan (No 2) [2013] NSWSC 1192 R v Lucas, (Ruth) [1981] 1 QB 720 Spies v The Queen [2000] HCA 43; 201 CLR 603 Zaburoni v The Queen [2016] HCA 12 Category: Principal judgment Parties: Jason Mark Grogan (Appellant) Regina (Respondent) Representation: Counsel: G Bashir SC (Appellant) S Dowling SC (Crown) Solicitors: Barraclough Jones & Associates (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/00017224 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2013] NSWSC 1643 Date of Decision: 27 August 2013 Before: RA Hulme J File Number(s): 2012/00017224 Judgment 1. THE COURT: On 27 August 2013 the Appellant was convicted of, on 12 April 2012, murdering Alan Henry. On 8 November 2013, RA Hulme J sentenced the Appellant to imprisonment for a non-parole period of 18 years commencing on 17 May 2012 with a balance of term of 6 years. The evidence before the jury as to the circumstances of the offence was to the following effect. 2. Mr Henry had been friendly with the Appellant and a Ms Slacke and in about mid-2011 they stayed in Mr Henry's home while he was in hospital. A few days after the deceased's return from hospital there was, in the words of a neighbour, a "blow-up". Voices were raised in the course of which the deceased was heard to say, "Get out and don't come back" and Ms Slacke's clothes were put outside. Nevertheless Ms Slacke continued to visit the deceased although the Appellant would do little more than drive or accompany her to the vicinity. According to what the Appellant said in an ERISP, Ms Slacke cleaned the deceased's house and washed and shopped for him and would be paid for doing so. 3. That Mr Henry continued with this view of the Appellant derives support from a conversation he had with a police officer at about 5.07pm on 10 January. In the course of that conversation, Mr Henry said he was happy to have Ms Slacke stay with him "as long as her boyfriend's not with her. He's an absolute arsehole and is not welcome here". 4. These remarks followed an altercation between the Appellant and Ms Slacke at a Caltex service station about 250 metres from Mr Henry's home. Both were screaming and the altercation resulted in the police being called. There was evidence that when the Appellant left the service station, he was "angry", "really pissed off" and "agitated and aggressive". The only evidence as to the topic of the argument were remarks of both the Appellant and Mrs Slack concerning possession or ownership of a dog. During the time over which the argument occurred Ms Slacke received some phone calls from the deceased. 5. The Appellant next seems to have been seen by neighbours of Mr Henry's, Mr and Mrs Ward who lived next door. To appreciate the significance of their evidence some description of items in the back yard of the properties is desirable. 6. The rear fence of Mr and Mrs Ward's place separating it from a back lane seems to be a normal timber fence of ordinary height. In that back fence, immediately adjacent to Mr Henry's place was a metal gate which seems to have been backed by some sort of metal sheeting, whether fixed or hinged it is impossible to tell from the photographs. The metal sheeting is the same height as the fence although the gate itself is lower. 7. Mr Henry also had a fence bordering onto the lane. From the photographs it is impossible to determine its general height and to a degree, also unascertainable, it was overgrown with foliage. However in the portion of the fence immediately adjacent to Mr and Mrs Ward's premises, there were two metal gates the height of which was appreciably, perhaps 150 - 225 mm above the height of the dividing fence and the Ward's back fence. 8. A dividing fence between the properties seems also to be of normal timber fence construction. Adjacent to Mr and Mrs Ward's back fence the dividing fence is of the same height as their back fence. However its height seems to increase as one moves along the fence away from the back fence - see particularly Photograph 3 in Exhibit J. Mr Ward's back fence and the dividing fence adjacent to the back fence would be easier to jump over than Mr Henry's gates. Inside Mr Henry's property was a metal shed, at least the size of a vehicle garage. The shed looks to be about 900 - 950 mm from the dividing fence and about 3 - 4 metres from the back fence. 9. Mrs Ward's evidence of observations on 10 January 2012 was that around 5pm while she was sitting on a garden bench in the backyard with her husband she heard their back gate rattle. She thought she caught a flicker of movement, looked and saw above the fence line the head of a person in Mr Henry's yard. The person was pretty much face on and about 10 or 15 metres from the back fence which abuts the laneway and between Mr Henry's back garage and the dividing fence. The head disappeared and then came back up, bobbing up and down three times though it did not otherwise move from where she first saw it. She did not recognise the person but told her husband what she had seen. 10. By the time of the third bob, Mr Ward was walking in the direction of a fowl-yard near the laneway and walked over until he was 2 to 3 metres from the side fence and spoke to the man. Mrs Ward heard Mr Ward say words to the effect "What are you doing" and a little later "Good on you". Mr Ward continued down to the chook pen and then came back with an egg. Mrs Ward did not see the man after Mr Ward had spoken to him. 11. Later, after Mr Ward had told her the ambulance had left, she heard noises that sounded like doors opening and shutting forcibly and drawers being roughly pulled in and out. 12. Mr Ward said that after the occasion when the Appellant was told by the deceased to get out and not come back on about two or three occasions he saw the Appellant drop Mrs Slack off down at the bottom of the street, two houses away, and return later and pick her up. After these occasions the Appellant seems to have entered the deceased's yard in the course of the pick-up incidents. The method of entry was via Mr Ward's back gate and then over the dividing fence. Mr Ward said that prior to 10 January he had seen the Appellant hop over the fence twice but heard the gate sound on some 6 occasions, although it should also be mentioned that the gate did rattle in the wind. The evidence is left somewhat obscure but some of these occasions may have been when the Appellant was going back into the laneway. 13. Mr Ward said that when in the deceased's property the Appellant would wonder around it may be inferred, outside the deceased's house, "sort of listening or whatever" bobbing up and down, apparently waiting for Mrs Slacke, and hiding. Later Mr Ward said that he had seen the Appellant in the deceased's yard only once, "stooped over and just keeping out of everyone's way. I don't know." 14. Mr Ward said that on 10 January, while he and his wife were sitting on a bench in their backyard Mrs Ward alerted him to the presence of someone on the other side of the (boundary) fence bobbing up and down. Mr Ward walked down the back while the man was still standing there and asked, "What are you up to?" The man replied: "I'm just having a piss up against the fence." Mr Ward described the man as "a bit nervous". Mr Ward carried on in the direction of the laneway and down to the chook yard. Asked if the man had been going to the toilet, Mr Ward said he did not know. Mr Ward did however say that he recognised the man as a male he had on a number of occasions seen previously at the deceased's home and who had stayed there. 15. Sometime later Mr Ward, then near the front of his carport, heard between 6 to 8 loud deep thuds coming from the rear of the deceased's house with a gap of 1 or 2 seconds in between. The thuds came from near the centre of the rear of the house near to the back door. Mr Ward said the sounds were not consistent with a person banging or knocking on a door. 16. In fact in the presence of Mr Ward, police had tried to duplicate the sounds Mr Ward heard by knocking and striking on and near the back door. A recording of the occasion was played in Court and on it Mr Ward is heard to say that the sounds were not as he had heard on 10 January. However at stages during the experiment, Mr Ward was recorded as saying, "No. It's very similar but it's not a knock. A knock is too quick. This was a lot slower" and at another stage, "It's sort of the same but - but it's not - no, it's different". 17. After the thuds Mr Ward did not hear anything else but continued to observe the deceased's home for a period of 5 or 10 minutes. He then saw the Appellant go from the deceased's yard over the fence into the laneway. The Appellant went in a direction that took him along the length of Mr Ward's back fence, keeping low for a time and then straightening up and walking quickly. 18. At about 5.30pm, Sergeant Broadley was patrolling in a police car and saw a male walking along the laneway carrying something. Sergeant Broadley stopped the car, reversed and drove into the laneway but the male person ran off into the property of a Mr Henderson. Where the male entered that property, Sergeant Broadley found a laptop that Mr Henderson said had not been there at about 5.00pm or 5.10pm. Despite having patrolled the vicinity, Sergeant Broadley was unable to locate the male person. In an ERISP the Appellant admitted that he was the male and that he had taken the computer from the deceased's premises and dropped it where it was later found. 19. There was further evidence concerning the laptop. The deceased's brother, Mr Richard Henry, gave a statement to Police on 19 January stating that he last saw the laptop the day of the assault and that it was under the coffee table in the lounge room with the power cord plugged in. Mr Richard Henry died before the trial commenced and there was no evidence as to the time when he left the deceased's premises, though it was sometime before 12.23pm when he caught the train. 20. In one of two ERISPs, the Appellant stated that he took the laptop from the side of the barbeque which was outside near the back steps of the deceased's house. Neither of the two police officers who attended, recalled seeing a barbeque and the suggestion that the laptop was out on the barbeque was effectively abandoned by defence counsel in his closing address. 21. Mr Ward also gave evidence that at some time later than his observation of the Appellant and hearing the thuds, he observed Ms Slacke walking into the front of the deceased's home. At 5.31pm Ms Slacke called 000 from the deceased's landline. 22. Only a short time later Mr Ward observed the Appellant reappear at the back of the deceased's home. He heard Ms Slacke and the Appellant arguing reasonably loudly on the back patio. Ms Slacke appeared distressed and agitated. He heard the Appellant say, "It's too late now, you just can't back out now, you know, it's gone too far." Mr Ward then saw the two go inside the deceased's home. 23. The first paramedic, Ms Jodie House, arrived at 5.50pm and found Mr Henry lying face down with his face turned towards his right shoulder. His arms were by his side, palms up, and he was unconscious. She observed considerable bleeding and lacerations around the deceased's left ear. One of the lacerations, either to the ear itself or scalp behind the ear was severe. There was a relatively large pool of blood, with a diameter some inches greater than the deceased's head, around his head. There was a bruise like appearance and swelling to his right forehead. The swelling was "noticeable to be a bump, like an egg on his forehead near the hairline". 24. Although they looked, none of the paramedics saw any signs of blood on the edges of bench tops or on the vertical surfaces supporting the bench tops. Neither of the paramedics recalled moving any furniture or having seen any of it moved, though Ms House said that it was possible that the fire brigade had done so in order to clear a pathway for the deceased. 25. After the paramedics left with the deceased, Mr Ward heard a commotion from the deceased's home that sounded as though drawers were being opened and shut. 26. Sergeants Forrester and Broadley arrived in full uniform at the deceased's premises at 7.18pm. Sergeant Forrester observed the outline of two persons through the front lounge room window. Sergeant Broadley saw that one person was female and other was male. The officers heard the two persons arguing heatedly along with other loud noises. The silhouettes disappeared as the officers approached the front door. 27. Sergeant Broadley knocked on the front door and identified himself as Police, asking for someone to come to the door. After a period of time, Ms Slacke came to the door but would not then allow the officers inside the home. Sergeant Forrester walked to the rear of the house and observed that both the screen and back doors were open. Ms Slacke came to the back door and eventually allowed the two officers into the house. 28. The officers observed a strong smell of bleach in the kitchen and that the linoleum floor was clean of any marks and was still wet in some places. Sergeant Broadley could not find any sign of blood upon examining the kitchen area with a small torch. The officers were unable to locate the male person they had heard earlier. 29. Later that day the officers returned to the deceased's home and observed Ms Slacke leaving through the front door with the Appellant following her. Despite Sergeant Broadley requesting to speak with the Appellant, he did not acknowledge the officer and later ran off. The officers were unable to locate the Appellant. 30. Dr Martin who examined the deceased on 10 January, described the haematoma on the right forehead adjacent to the eyebrow as large, i.e. more than a couple of inches across. While there were minor grazes to the right shoulder and forearm, no significant limb injuries were noted. Dr Martin did not observe any internal chest or abdomen area injuries. Nor did he observe any cerebrospinal fluid leak from the deceased's ears or any other obvious indication of a skull fracture. 31. Although any assault of Mr Henry by the Appellant occurred on 10 January, the deceased did not die until 19 April 2012. Accordingly, a deal of the evidence of Dr Beer, the pathologist who carried out the post-mortem examination, was based upon descriptions of what the paramedics had seen and hospital and other medical notes of Mr Henry's treatment in the interim, rather than on his own observations. 32. He said that although the final and direct cause of death was pneumonia, incapacity that had arisen in consequence of the left side head injury had led to the pneumonia. He agreed that the significant substantial cause of death was the brain injury. 33. He expressed the view that the injury to the left side of the head and to the brain was "almost certainly probably just [a result of] hitting the ground although potentially hitting something on the way down". The attitude of the deceased when found with his arms by his side suggested that he had not attempted to break his fall. 34. Dr Beer explained that the most probable mechanism by which the deceased sustained his injuries was from a single punch or a blow to the right side of his forehead. The blow probably rendered him unconscious causing him to fall and hitting the left side of his head on some object as he was falling or when he hit the floor. After considering photographs of the scene where the deceased was found, Dr Beer said that the deceased might have struck his head while falling and might have been conscious when his head hit the ground. 35. Addressing the injury to the right side of the forehead, Dr Beer said that it was not typical of what one would expect to result from a fall of an elderly person and strongly suggested an assault to that region, possibly consistent with a blow by a fist. Asked to offer an opinion as to the degree of force behind such a blow, Dr Beer indicated that such an opinion was problematic because of a number of factors, to some of which he referred. The evidence continued:- 1. Q. Is that type of injury, as it described and documented, consistent with a blow with a fist? 2. A. It could be. 3. Q. By the description of it, are you able to offer any opinions to the degree of the force behind such a blow, be it the case? 4. A. Describing degree of force can be problematical because of a number of factors. First of all, the injury has occurred over the skull, so you have what is called an angle effect; in other words, basically a lesser degree of force to that area can cause a similar amount of injury than a much major force to another area, so that's one factor. 5. Other factors that can affect this is the age of the person. Clearly if they are older they have more fragile blood vessels, they may or may not be on medications that affect their clotting, et cetera, et cetera. 6. But having said all of that, a moderate degree of force, I think, is required to cause that sort of injury. When I say "sort of like that", a basic sort of just gently bumping into something or perhaps just a gentle hit to the said of the head wouldn't do it. Something more significant in a way of a decent sort of punch or perhaps a hit into a cupboard would do it. Whereas opposed to what I would call severe force was the sort of force that we saw with the injuries on that side of the head to the left side of the head. 1. Given the totality of the answer, it does not seem to the Court that the reference to "severe force" in this answer can be regarded as applying to the blow or punch as distinct from the force that caused the injuries to the left side of the head. 2. Dr Beer was taken to the possibility of 6 to 8 thuds being occasions when the deceased was hit. Dr Beer gave the opinion that this possibility was "very improbable" as those types of injuries would have most likely caused other injuries to the head and the death of the deceased at that time. 3. In one of his ERISPs the Appellant admitted having gone to the deceased's home that afternoon where he spoke with the deceased who was fine when he left. The Appellant denied assaulting him and said that the two had an amicable relationship. 4. The Crown case on murder was left to the jury on two bases and they were also directed that manslaughter was an option. One of the bases relied on by the Crown in support of the charge of murder, was that at the time of his assault on Mr Henry, the Appellant intended to inflict grievous bodily harm. The second was constructive murder in that the assault was done during the commission of the offence of aggravated robbery with wounding. 5. The grounds of appeal are: 1. The verdict is unreasonable and cannot be supported having regard to the evidence. 2. (2) (a) The trial judge erred in admitting evidence of flight of the Appellant. 3. (b) The trial judge erred in his directions to the jury in relation to the flight of the Appellant by directing the jury that the evidence could be taken into account as demonstrating a consciousness of guilt in circumstances where it could not demonstrate a consciousness of guilt of murder (or manslaughter). Ground 1 The verdict is unreasonable and cannot be supported having regard to the evidence 1. In accordance with M v The Queen [1994] HCA 63; 181 CLR 487 at 493, the test posed by this ground is whether, upon the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty. The majority of the High Court went on, at p 494, to remark that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It follows that this Court is required to undertake its own assessment of the sufficiency and quality of the evidence. 2. The Crown case of murder on both of the bases that were left to the jury was a circumstantial one. Accordingly, before the Appellant could be convicted, the jury had to be satisfied that the Appellant's guilt was the only reasonable conclusion to draw and there was no other reasonable explanation available. 3. So far as the first basis upon which the Crown sought the Appellant's conviction is concerned, it was the defence case that the jury could not exclude the reasonable possibility that the deceased died as a result of falling and knocking himself unconscious. Evidence of the injuries suffered by the deceased and that adduced from Dr Beer, puts paid to this contention and the Court need not further consider it. 4. However, it was further argued that even if the jury were satisfied that the Appellant had assaulted the deceased, an intention to cause grievous bodily harm could not be inferred from a single punch. In opposition, the Crown relied on some further matters:- (1) A history of animosity between the Appellant and the deceased. (2) The Appellant's heightened state of anger and aggression at the time of the assault. (3) The Appellant's manner of entry into the deceased's home. (4) The deceased's state of mind towards the Appellant. (5) The manner of assault, and (6) The age of the deceased. 1. In considering these matters, it must be remembered that what the Crown had to prove was an actual, subjective, intention on the part of the Appellant to inflict grievous bodily harm. As recently observed by Kiefel, Bell and Keane JJ in Zaburoni v The Queen [2016] HCA 12 at [17]: Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. 1. Gageler J added at [55]: The intention to be proved was an actual subjective intention to achieve that result as distinct from awareness of the probable consequences of his actions. 1. As has been said, Dr Beer's opinion as to the degree of force necessary to cause the blow was "moderate" or a "decent sort of punch". It does not seem to the Court possible to infer from a blow simply so described an intention to cause grievous bodily harm. 2. Of course there must be taken into account the other matters referred to by Dr Beer, including the deceased's age, and that the blow was to the deceased's head and probably rendered him unconscious but again it does not seem to the Court that these factors argue for an intent to inflict grievous bodily harm. There is nothing to suggest that the Appellant had knowledge that these features were likely to increase the extent of injury from a moderate punch. Do the other matters relied on by the Crown justify a different conclusion? 3. In the Court's view they do not. There was no evidence as to the manner of assault other than that to which the Court has referred. It may be accepted that animosity may inspire a desire to hurt and hurt to the extent of grievous bodily harm. However in that the evidence indicated that only one punch was inflicted and that was not shown to be more forceful than Dr Beer described, it does not seem to the Court that that Appellant's animosity argues in favour of an intent to inflict grievous bodily harm as distinct from a simple desire to punch or inflict some, in thought unquantified, degree of injury. 4. Remarks in the immediately preceding paragraph apply also to the Appellant's heightened state of anger and aggression at the time, particularly as there is nothing to suggest that the subject of, or inspiration for, the dispute at the service station was the deceased. 5. And while the deceased's state of mind towards the Appellant may make more probable that approaches to the deceased, or actions by the Appellant towards the deceased were likely to be rebuffed, and thereby create or exacerbate anger, Dr Beer's evidence as to the force of the blow precludes the deceased's state of mind being given any significant weight on the current issue. 6. The fact that the Appellant was at the deceased's premises when he had been told by the deceased to stay away, certainly raises the question whether he intended some harm to the deceased, to his person or property. However there are many types of harm other than grievous bodily harm and even in combination with what occurred and the other matters relied on by the Crown, it does not seem to the Court that the Appellant's presence there or manner of entry leads to the view that he intended grievous bodily harm. Nor can the Court see how the deceased's age argues for such an inference being drawn. 7. The Crown submitted that the Appellant had sought to conceal his presence in arriving at and leaving the deceased's property. If one accepts Mr Ward's evidence - and it derived support from the evidence that the Appellant while in the laneway fled from the police - that submission at least insofar as it refers to the Appellant leaving the deceased's property, is difficult not to accept. However, it seems clear that by that time the Appellant had assaulted the deceased and the latter was unconscious – matters that are well capable of explaining a desire on the part of the Appellant to decamp and, to the extent possible, conceal his identity. 8. The submission that the Appellant had sought to conceal his presence prior entering the deceased's house is far more difficult to accept. The extent of the raising and lowering of his head, and the absolute or relative height of the fence were not explored and his lowering his head on at least two occasions is explicable by the possibility that he was undoing and doing up his fly. The fact that when observed and spoken to by Mr Ward, he made no attempt to flee also argues for the view that he was not attempting to conceal himself at that time. It must also have been obvious to him from the time of that conversation that, having been a visitor to the deceased's premises on a number of occasions previously and likely to have been seen by neighbours, he would be a prime suspect if anything untoward happened to the deceased – a matter that argues at least to some degree against the likelihood of any intention to harm the deceased - at least after he knew he had been observed. 9. In summary, the Court is unable to see any evidence upon which the jury could reasonably have come to the conclusion that the Appellant intended to inflict grievous bodily harm to the deceased. Certainly an intention to inflict that degree of harm is not the only reasonable explanation of what occurred. 10. In arriving at this conclusion, the Court does not ignore observations made by his Honour in the course of his summing up that: 11. In some cases the person's acts may themselves provide the most convincing evidence of the intention held at the time. Where a specific result is the obvious and inevitable consequence of a person's act and where the person deliberately does the act, a jury might readily conclude that the person did that act with the intention of achieving that result. 12. However, the Court sees no basis for concluding that unconsciousness or death is an obvious and inevitable consequence of a punch, even one of moderate severity, to the head of an old man, even one aged 72 as Mr Henry was. Constructive murder 1. The second basis upon which the jury were asked to find the Appellant guilty of murder is what has become known as constructive murder. So far as relevant to this basis, s18(1)(a) of the Crimes Act 1900 provides:- Murder shall be taken to have been committed where the act of the accused, or thing by him other omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. 1. Pursuant to s 96 of the Crimes Act 1900, aggravated robbery with wounding is an offence punishable by imprisonment for 25 years: 2. Directing attention to this alternate way in which the Crown put its case, RA Hulme J directed the jury that they had to be satisfied beyond reasonable doubt that: 1. The Accused took and carried away Mr Henry's laptop computer (and cords) with the intention of permanently depriving him of them. 2. The Accused took the laptop (and cords) from Mr Henry's immediate personal care and protection. 3. The laptop was taken without Mr Henry's consent in that it was taken by the use of force. "Taken by the use of force" mean that the, or a purpose of, the use of force was to enable the Accused to take Mr Henry's property. 4. The Accused hit Mr Henry. 5. Mr Henry suffered a wound, and 6. The Act that caused (or substantially or significantly contributed to Mr Henry's death was one that was done during the commission of the offence of aggravated robbery with wounding. 1. At trial, counsel for the Appellant made a no-case application in relation to constructive murder. During the no-case application, the trial judge put to the Crown that the stealing of the laptop could have been an opportunistic afterthought separate from the assault. Such an inference was conceded by the Crown prosecutor as being "certainly open". However the Crown went on to press this second basis and his Honour concluded:- It would be open in my view for the jury to infer that the accused's intention, either in going to the house or at least when at the house, was to steal property from Mr Henry… In my view, it would also be open to the jury to infer that an assault for some other unknown purpose is not a reasonable possibility, and that, therefore, the jury could find in favour of the Crown in respect of the six elements of constructive murder that I have set out in the draft summing-up notes that were circulated to counsel yesterday afternoon. 1. The fact that the Appellant did steal the computer certainly raises, as a possibility, that he went to the deceased's house for that purpose. However, the Court is unable otherwise to agree with the passage quoted. In the first place if assaulting for some other purpose was not a reasonable possibility, there would seem to be no ground upon which an intent to cause grievous bodily harm was left to the jury. 2. More significantly, there were a number of reasonably possible reasons why the Appellant assaulted the deceased. Given that Ms Slacke's and the Appellant's presence in the area was presumably with a view to Ms Slacke visiting the deceased it may be that the Appellant wished to have it out with the deceased why he himself was not welcome. Another possibility is that the Appellant went to the deceased's house with a view to putting to an end permanently the relationship or arrangement between the deceased and Ms Slacke that resulted in her visiting the deceased regularly. A third is that the deceased was just a convenient target for the Appellant's spleen built up during the confrontation at the service station and with or without some physical violence falling short of grievous bodily harm. 3. In the result, the Court is persuaded that it was not open to the jury to conclude beyond reasonable doubt that the taking of the laptop or any other property was the reason, or a reason, for the assault upon the deceased. The taking of the computer in consequence of an opportunistic afterthought following the deceased's incapacity was at least a realistic and reasonable possibility. 4. In that connection, it is not without significance that the Appellant would have had ample opportunity to steal possessions from the deceased's house when the Appellant and Ms Slacke stayed there while the deceased was in hospital. There is no evidence that that had occurred, nor that at any time the Appellant had stolen from the deceased. Furthermore, given that the deceased must obviously have been there and knew the Appellant, it seems unlikely that the Appellant would have intended to commit an offence that could, unless the deceased was killed, be easily proved. 5. The Court recognises that in concluding as we have, the Court is differing from the view of a very experienced judge and at least one major conclusion of the jury. However, the Court believes that the factors we have mentioned, constrains us to the conclusions at which the Court has arrived. 6. The verdict of guilty of murder cannot stand. This case is not one where it should be referred for a retrial for the offence of murder. The Crown case cannot improve and for the reasons above the evidence does not support a verdict of guilty of murder. Ground 2(a) The trial judge erred in admitting evidence of flight of the Appellant; 1. The evidence that was the subject of the first of these grounds was that to which the Court has referred in [18], [26] and [29] above. 2. In deciding to admit the evidence, RA Hulme J observed that "there is a logical connection between flight … and the conduct comprising elements of the offences for which the accused is being tried; that conduct being a violent assault of the deceased and the theft of his property" and that the evidence in question has the potential to be highly probative of the accused acting in a way that demonstrates that he feared being implicated in the assault of Mr Henry and the theft of his property. 3. During the hearing of the appeal, there was no challenge to these conclusions which are obviously correct. Rather, was it submitted that because the evidence of flight was not capable of demonstrating a consciousness of guilt of murder (or manslaughter) – offences which were not complete until the deceased died - the evidence was not admissible. Reliance was placed on statements in R v Cook [2004] NSWCCA 52 in the context of lies – the more common circumstance indicative of a consciousness of guilt - that, in addition to the four conditions of admissibility specified in R v Lucas, (Ruth) [1981] 1 QB 720, viz. 1. (i) that the lie is deliberate; 2. (ii) that it relates to a material issue; 3. (iii) that the motive for the lie is a realisation of guilt and fear of the truth; and 4. (iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness. 1. there was a fifth condition required to be satisfied, viz. "where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt … of the offence with which he/she is charged" - at [23]. 2. However in Penza and Di Maria v R [2013] NSWCCCA 21 at [191], Hoeben CJ at CL with the concurrence of the other members of the Court observed:- 1. It seems to me that care has to be taken when applying her Honour's fifth principle. On the facts in Cook, it was clearly applicable. There are, however, limits to its applicability. It does not mean that in any case where there was evidence of consciousness of guilt with regard to a major crime, and the accused accepted that he or she had committed a minor crime that therefore evidence of consciousness of guilt would be inadmissible. If there is a logical connection between the actions relied upon as evidencing a consciousness of guilt and the offence in respect of which that evidence is adduced, I would regard the evidence as admissible. 1. The Court respectfully agrees. His Honour's approach accords with that apparent in the remarks of the majority of the High Court in Edwards v The Queen [1993] 178 CLR 193 at 209 to the effect that "the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie." 2. While it is not possible to infer that any flight by the Appellant on 10 January 2012 was inspired by the deceased's death, material and very relevant to the issue of whether the Appellant was involved in that death is whether he assaulted the deceased on that day. Thus evidence of flight by the Appellant was prima facie admissible. 3. A further ground upon which it was submitted that the evidence of flight should have been excluded was that its admission was unfair to the Appellant because any attempt at explanation would involve the Appellant in putting before the jury evidence, likely to be prejudicial, of prior criminality. RA Hulme J recognised the danger or unfair prejudice but because "the evidence in question has the potential to be highly probative of the accused acting in a way that demonstrates that he feared being implicated in the assault of Mr Henry and the theft of his property" - R v Grogan (No 2) [2013] NSWSC 1192 at [28]-[29] - his Honour said that he was not persuaded that the danger outweighed the probative value. In this connection His Honour quoted further remarks of Simpson J in R v Cook, at [47], and which are clearly correct that:- 1. There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct. 1. Certainly the Appellant would not have wanted full details of his criminal history, containing as it does many offences of stealing and other dishonesty, including breaking and entering, and a number of assaults, including assault occasioning actual bodily harm, before the jury. However in an ERISP, the relevant parts of which were before the jury, the Appellant had explained that he ran away because, inter alia, "I've got a history … . I'm afraid of getting the blame … for something I didn't do. I don't go around 'bashin'. You have a look at me history" (sic). 2. This rather reduced, although it did not eliminate, the danger of unfair prejudice that might flow from the admission of more of the Appellant's criminal record. Be that as it may, in the result, the Court is not persuaded that his Honour erred in admitting the evidence of flight. Ground 2(b) The trial judge erred in his directions to the jury in relation to the flight of the Appellant by directing the jury that the evidence could be taken into account as demonstrating a consciousness of guilt in circumstances where it could not demonstrate a consciousness of guilt of murder (or manslaughter) 1. In order to assess Ground 2(b), it is necessary to set out the trial judge's directions as to flight. During the course of summing up, his Honour said: You can take this evidence of flight into account as evidence of the accused's guilt. It could not prove his guilty on its own, but it may be considered along with all of the evidence on the question of whether the Crown has proved the guilt of the accused beyond reasonable doubt. The first thing is that you must be satisfied that the accused's flight is relevant to the offence that the Crown alleges he committed. It must relate to some significant circumstance or event connected with that alleged offence. The Crown says that you would find that it has such a connection because each occasion, and particularly the first, occurred a short time after Mr Henry, the Crown says, was assaulted and sustained the injuries that ultimately led to his death. The second thing is that you must find that the reason why the accused fled from the police was that he knew that he had assaulted Mr Henry and that he feared getting caught. You must remember that people do not always act rationally and conduct like this may be sometimes explained in other ways. A person may have a reason for fleeing from the police quite apart from trying to avoid getting caught for having done something that they knew was wrong. In this case you have the accused's explanation in his police interviews which was to the effect that he was afraid of getting the blame for something that he had not done. He also appears to have been trying to convey that his decision to run from the police was something that occurred on the spur of the moment and, with hindsight, was ill considered. At one point in his first interview he said, in answer to question 101, "I should have just sorted it there and then". So if you think the accused's flight from police was for some reason other than to avoid being caught for something he knew he had done which was criminally wrong, then the evidence takes the Crown case nowhere and should be put to one side. But if you do decide that his conduct is explained by him not wanting to get caught for having assaulted Mr Henry and stolen his property, then you could draw the inference that this supports the Crown case that he did, in fact, do those things. Mr Smith submitted to you that the fact that the accused fled from the police and also that in the argument with Ms Slacke out the back of Mr Henry's home he was heard to say, "You can't back out now," are equally consistent with the accused having been involved in some incident with the deceased which did not involve him assaulting him, but he feared being wrongly blamed for it. In short, the argument was that there was an alternative explanation, so you could not include that the accused fled from the police because he feared being apprehended for his wrongdoing. Another important thing about this evidence concerns the fact that Mr Henry did not pass away until some months later. At the time of the accused's flight from the police Mr Henry had, on the Crown case, been seriously assaulted but was alive. So this evidence is limited in its relevance to the question whether the accused assaulted Mr Henry and stole his property. It says nothing about whether, if there was such an assault and theft, it renders the accused guilty of murder as opposed to manslaughter or vice versa. 1. Although had it stood alone, the first of the paragraphs quoted, might reasonably be criticised, it did not stand alone. In the last of the paragraphs his Honour made perfectly clear the limited issue to which the evidence of flight was relevant. The Court rejects this ground of appeal. Resentencing for Manslaughter by Unlawful and Dangerous Act 1. The conclusions expressed above mean that the Appellant's conviction for the offence of murder cannot stand. Section 7(2) of the Criminal Appeal Act 1912 provides:- 2. Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. 3. During the hearing of the appeal, counsel for the Crown submitted that in the event the Court quashed the Appellant's murder conviction and dismissed Ground 2, the Court could convict the Appellant of manslaughter, or alternatively order a re-trial on a charge of manslaughter. 4. The jury's verdict carries with it the implication that they were satisfied that the Appellant struck the deceased. Manslaughter was a verdict they could have found. However, the jury having found murder, there was no occasion for them to consider the elements of manslaughter. Indeed his Honour's written directions to the jury said that a verdict on manslaughter would only be required if there was a verdict of not guilty of murder. Hence it cannot be said that "the jury must have been satisfied of facts which proved the Appellant guilty of that other offence." 5. The essential nature of such a conclusion is clear from the terms of s 7(2) itself. It was stressed in Spies v The Queen [2000] HCA 43; 201 CLR 603 where a number of earlier cases that ignored the requirement were disapproved and, more recently in Mehajer v R [2014] NSWCCA 167; 244 A Crim R 15 at [138]. 6. Given the way in which the Crown case was left to the jury, i.e. that the Appellant could be convicted upon the basis of constructive murder, the jury may have gone no further on the topic of violence than concluding that the Appellant struck the deceased. On such an approach, the jury had no need to consider issues such as the force of any blow, whether it indicated an intention to inflict grievous bodily harm or whether it was a dangerous act in that a reasonable person would realise, it exposed the deceased to an appreciable risk of serious injury. It cannot be said that the jury "must have been satisfied of facts that proved the Appellant guilty of that other offence" viz. manslaughter. 7. In these circumstances, this Court cannot exercise powers under s 7(2) and, subject to any guilty plea by the Appellant there must be a new trial. 8. Accordingly the orders of the Court are:- (i) Allow the appeal. (ii) Quash the Appellant's conviction on a charge of murder and the sentence imposed by RA Hulme J on 8 November 2013. (ii) Order that there be a retrial of the Appellant limited to the issue of manslaughter. ******* Amendments 24 July 2017 - coversheet - removed publication restriction notation paragraph [88] - corrected paragraph numbering 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: 24 July 2017