Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Duffy v R [2017] NSWCCA 77 Hearing dates: 13 March 2017 Decision date: 26 April 2017 Before: Basten JA at [1]; Latham J at [63]; Campbell J at [64] Decision: With respect to the application for leave to appeal against conviction: (a) Refuse leave pursuant to r 4 of the Criminal Appeal Rules to rely upon grounds 1 and 3, to the extent that the latter involves a challenge to the directions given to the jury. (b) Refuse leave to appeal pursuant to ground 3, pursuant to s 5(1)(b) of the Criminal Appeal Act, in so far as it alleged that the verdict was unreasonable and not supported on the evidence, or otherwise involved a miscarriage of justice. (c) Ground 2 not being pressed, refuse the application for leave to appeal against conviction. With respect to the application for leave to appeal against sentence: (a) Grant leave to appeal. (b) Dismiss the appeal. Catchwords: CRIMINAL PROCECURE – leave to appeal against conviction – grounds of appeal not argued at trial – leave required under Criminal Appeal Rules (NSW), r 4 – whether directions of trial judge resulted in miscarriage of justice CRIME – appeal – leave to appeal against conviction – applicant convicted of manslaughter under joint criminal enterprise principles – whether trial judge misdirected jury as to what constitutes "participation" in joint criminal enterprise – whether presence during commission of offence sufficient – offender's state of mind as to common purpose CRIME – appeal – leave to appeal against conviction – whether jury rejected direct evidence of witness – whether guilty verdict based solely on circumstantial evidence – whether verdict unreasonable CRIME – appeal – leave to appeal against sentence – whether trial judge erred in making finding of fact as to applicant's participation in killing of deceased Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules (NSW), r 4 Cases Cited: Doney v The Queen (1990) 171 CLR 207 M v The Queen (1994) 181 CLR 487 McAuliffe v The Queen (1995) 183 CLR 108 Miller v The Queen [2016] HCA 30; 90 ALJR 918 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 R v Storey [1998] 1 VR 359 Sandford (1994) 72 A Crim R 160 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Category: Principal judgment Parties: Michael John Duffy (Applicant) Regina (Respondent) Representation: Counsel: Mr J Renwick SC/ Mr M Kalyk (Applicant) Ms M Cinque SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/175139 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 1321 Date of Decision: 18 September 2015 Before: Davies J File Number(s): 2012/175139 Judgment 1. BASTEN JA: In April and May 2014, the applicant, Michael John Duffy, was tried on a charge of murder and a separate charge of break, enter and steal from the premises in which the murder took place. He was acquitted of murder, but found guilty of manslaughter. He was also acquitted of the break and enter charge, but had already entered a plea to stealing in a dwelling house. On 18 September 2015 he was sentenced by Davies J on both charges. [1] With respect to the stealing offence, he was given a fixed term of imprisonment for 2 years commencing on the date of his arrest, namely 1 June 2012. For the manslaughter offence, he was convicted and sentenced to a non-parole period of 8 years, commencing on 1 March 2013 and expiring on 28 February 2021, with an additional term of 4 years. 2. The applicant sought leave to appeal against both his conviction for manslaughter and the sentence imposed for that offence. The ground of the latter challenge related to the judge's finding as to the manner of the offender's participation in the killing of the deceased. Background circumstances and issues 1. The deceased, Colleen Deborah Ayers met Rachael Evans at a pub in Campbelltown on Tuesday 8 May 2012, the day before her death. Ms Evans was primarily responsible for the murder of Ms Ayers, by strangling her with a belt. 2. In the course of the evening of 8 May, Evans and Ayers were joined by the applicant, Duffy, and Ms Evans' sister (who will be referred to as "XY" because she was then under 18 years of age and subject to a statutory requirement that her name not be published in a way that connects her with the criminal proceedings [2] ). The applicant and the three women spent the evening at a hotel in Picton. On the following morning, Wednesday 9 May 2012, the group returned to Campbelltown where XY met her friend, Scott Derbridge, who joined the group. They were also joined at some stage by another young man, Marc Carran (known variously as "Kiwi" and "Nozzy"). Having acquired drugs and alcohol in Campbelltown, the group, now six persons, travelled to Picton and thence by taxi to the home of the deceased's parents at Lakesland. The deceased's parents were away and the house was otherwise empty. 3. For much of the evening, the group appears to have been sitting around a fire between the main house and a guest house. They consumed methamphetamine, speed, marijuana and alcohol in significant quantities. Later in the evening, the applicant and Ms Ayers went to one of the bedrooms and had sex. While they were both in bed, Ms Evans and XY came into the bedroom. It appears that XY harboured a grudge against Ms Ayers and enlisted her elder sister in her cause. When they entered, the applicant jumped off the bed. There was no dispute that Ms Evans put a belt around Ms Ayers' neck while she was lying on the bed, pulling it tight and holding it until Ms Ayers went limp, dying of asphyxiation. 4. Beyond those bare events, which explained the death of Ms Ayers, precisely who was present and what role each played was a matter of controversy, with few common elements amongst the accounts given by the participants. For example, there was evidence that at some point XY hit Ms Ayers on the head with a bottle, although a post-mortem examination could find no evidence to suggest that Ms Ayers suffered any injury as a result of a blow to the head. 5. It was, however, common ground that the applicant was in the room throughout the brief time it took to kill Ms Ayers, but took no steps to assist Ms Ayers during the assault, nor did he seek medical help when she went limp, or show any concern as to her state. Rather, he and Derbridge set about digging a shallow grave to bury her body. Apart from Carran, who appears to have been asleep throughout these events, the others were involved in digging the grave, carrying the body and burying the deceased. 6. The applicant expressed a willingness to plead to a charge of being an accessory after the fact to the killing of the deceased, but denied involvement in the events leading to her death. The offer to plead was not accepted by the prosecution. 7. The primary case for the prosecution was that the applicant himself had put the belt around Ms Ayers' neck, which accorded with Ms Evans' account. The alternative basis upon which the applicant was said to be liable for murder involved his participation in a joint criminal enterprise with Ms Evans, which involved causing serious bodily harm to Ms Ayers, or killing her. The verdict of manslaughter involved a rejection of the prosecution case on both these bases. 8. The case with respect to manslaughter was also put on two bases. The first was that the applicant at one stage held the belt around the deceased's neck. If the jury were satisfied that that was an unlawful and dangerous act, and that the applicant intended to do the act, he was guilty of manslaughter, although he did not intend to cause serious bodily harm. In the alternative, it was put that even if he did not himself pull on the belt around the neck of the deceased, he was part of a joint criminal enterprise with Ms Evans which included that unlawful and dangerous act and was guilty of manslaughter on that basis. 9. Clearly, and unsurprisingly, the jury were satisfied beyond reasonable doubt that the pulling of a belt around the neck of the deceased was an unlawful and dangerous act. If the applicant himself undertook that task, he intended it. If he did not undertake that task, it must have been part of the criminal enterprise on which he was engaged with Ms Evans. Which of these alternatives the jury accepted is not known. 10. Neither the written directions which set the various options before the jury, nor a separate document in the form of a "question trail", was challenged by the accused in the course of the trial. However, various phrases used in the question trail, including the phrase "joint criminal enterprise", were the subject of explicit directions by the trial judge in the course of his summing up. The principal ground (ground 1) on which permission to appeal was sought involved a challenge to those directions, in the following terms: "His Honour erred in his directions to the jury concerning what constituted a joint criminal enterprise, such that there was a miscarriage of justice namely, in failing to adequately direct the jury that both an agreement and the [Applicant's] participation in that agreement were required to be found beyond a reasonable doubt and that mere presence or indifference was not sufficient to establish participation". 1. No objection to the directions having been raised in the course of the trial, leave to rely on this ground was required under the Criminal Appeal Rules (NSW), r 4. To address that application, it will be necessary to identify the relevant passages in the summing up to which exception was taken. 2. The second ground was not pressed, so that the alternative basis of appeal against conviction was raised in ground 3, which read: "His Honour erred in leaving the case to the jury on the basis that they could convict the Applicant of the offences charged even if they rejected the evidence of Rachel Evans as any such verdict was unsafe and unable to be supported having regard to the nature and quality of the evidence." 1. As counsel for the Director pointed out, there was a difficulty in the formulation of this ground. Pursuant to s 6 of the Criminal Appeal Act 1912 (NSW), this Court may set aside a verdict of guilty on the ground that it is "unreasonable, or cannot be supported, having regard to the evidence". (This is commonly referred to as the first limb of s 6(1).) It is not correct to say that the trial judge is required to form some preliminary view about that matter and withdraw a particular charge from the jury if the judge considered that the verdict could be so characterised. As the High Court explained in Doney v The Queen: [3] "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 1. Further, although ground 3 was not precise in this respect, the submissions clarified that the critical evidence of Ms Evans was the claim that the applicant had put the belt around the neck of Ms Ayers, or had, at one stage, pulled on the belt when Ms Evans was knocked off balance by Ms Ayers' struggle to free herself. As noted above, one basis upon which manslaughter was left to the jury was that the applicant did not pull the belt around Ms Ayers' neck, but was nevertheless party to a joint criminal enterprise with Ms Evans, who on that approach held on to the belt at all stages. Directions with respect to joint criminal enterprise 1. It is convenient to start by noting the principles regarding joint criminal enterprise, as stated in McAuliffe v The Queen [4] and repeated by the majority in Miller v The Queen: [5] "The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. [6] Each party is also guilty of any other crime ('the incidental crime') committed by a co-venturer that is within the scope of the agreement ('joint criminal enterprise' liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ('extended joint criminal enterprise' liability)." 1. The judge directed the jury, in terms which were not challenged, with respect to the concept of a "joint criminal enterprise". [7] The applicant's criticism focused on what was described as the "inadequacy" of his explanation of what may constitute participating in the criminal enterprise. In that regard the judge stated: [8] "A person participates in a joint criminal enterprise either by committing the crime charged itself or, knowing that the crime is being or is about to be committed, by intentionally assisting or encouraging another party to 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 participants in the joint criminal enterprise to commit the crime. Now, you will remember that [counsel for the accused] said that simply standing by while a crime is committed does not mean you are taking part in a joint criminal enterprise, and that is right, provided that there was not an arrangement in place before that time to commit the crime. Merely being present when a crime is committed does not make you guilty of the crime, if there is nothing else." 1. The trial judge then gave some examples, including examples of crimes committed on the spur of the moment and crimes where one person did not leave the car, but waited in the driver's seat with the engine running whilst two others undertook a break and enter. The written direction to the jury with respect to a number of matters included the meaning of "joint criminal enterprise". Importantly for present purposes, the case was not left to the jury on the basis of an "extended joint criminal enterprise"; that meant that the third element in the description set out from Miller above, was not engaged. 2. The direction with respect to manslaughter covered an act causing the death of the deceased, where the act was intentional, "unlawful" and "dangerous". The judge defined "unlawful" as an act involving "a deliberate application of force to another person without that person's consent"; and "dangerous" as an act where "a reasonable person in the position of the accused would have realised that … the deceased was being exposed to an appreciable or significant risk of serious injury." No challenge was made to those directions. 3. In the circumstances of the case, whatever else needed to be said was said in the course of summing up the circumstances revealed by the evidence. If the jury accepted Ms Evans' evidence, it was open to them to conclude that the accused was forewarned that there was going to be an attack on Ms Ayers. It was open to them to conclude, further, that the accused participated in the attack. If the jury did not accept at least some key aspects of Ms Evans' evidence, then the question of participation became critical. The latter possibility was the subject of ground 3. However, on Ms Evans' evidence, there was no difficulty in understanding what was said to involve participation. For example, her evidence was that after her sister had hit Ms Ayers on the head with a bottle, the applicant said, "Get the belt". Ms Evans also stated that she was knocked off balance after she had placed the belt around Ms Ayers' neck and it was the applicant who took hold of the belt and pulled on it while XY held Ms Ayers' legs down. (XY denied being in the room while Ms Ayers was strangled.) 4. There was also evidence from all the persons involved (except the applicant) that Ms Ayers had called out, "Please stop", or words to that effect. Accepting that evidence, the applicant's failure to respond to that cry would have been capable of supporting the case that he was a participant in the attack by the two women, or just Ms Evans. 5. It is therefore apparent that the challenge in this Court to the directions as to participation could only arise on the basis that the jury did not accept Ms Evans' evidence. Otherwise, the failure to seek a further direction could readily be explained by awareness that it would be futile and unwarranted. That is because any active involvement of the applicant would constitute participation, in accordance with the unchallenged directions. 6. There was a tendency in the applicant's submissions to confuse the mental state of the accused and his conduct. On the other hand, there was the suggestion that it was "circular" to allow a finding that the accused's presence established an agreement to the unfolding attack and established participation in the agreed events. However, it is not false reasoning to draw from conduct, including presence, an inference as to connivance in the attack and also an inference of willingness to assist, if required. 7. The difficulty for the jury arises from the addition of a layer of agreement (joint enterprise) as a condition of the imposition of legal responsibility on a person who does not do the "act" which constitutes the crime. But some act is required. Sending a text message indicating agreement with a planned assault, and indeed conveying encouragement, will not render the sender of the message jointly liable with the assailant. Presence at the scene will be sufficient, if pursuant to a common purpose, because willingness to assist if necessary may be inferred. Mere presence, absent a common purpose, will not suffice. 8. However, a common purpose may arise by way of a tacit understanding, immediately prior to the crime being committed. That was one available approach on the prosecution case. 9. The scope of the liability of the non-active participant will depend on his or her state of mind. That may also be defined as the scope of the agreement. Thus, in the present case, the question was what the applicant's expectation and assent covered. If it were only the assault, not intended to cause really serious bodily harm, or death, which was objectively probable, the offence was manslaughter, not murder. 10. Subject to the related matters dealt with under ground 3, and the manner in which the jury directions dealt with critical aspects of the evidence, the jury directions as to legal principles relating to joint criminal enterprise were not inadequate. The absence of any request for further directions was, in the circumstances of the case, understandable. The application, pursuant to r 4, for leave to rely upon ground 1 should be refused. Rejection of Ms Evans' evidence – ground 3 1. This ground underwent a degree of transformation in the course of the proceedings. Putting to one side the suggestion that the judge erred in "leaving the case to the jury" on a conditional basis, namely acceptance of Ms Evans' evidence, there remained a submission that the verdict of manslaughter was unreasonable and could not be supported on the evidence, if the jury did not accept the evidence of Ms Evans. In the written submissions, this ground was addressed as a misdirection as to the circumstantial evidence, on the basis that, without Ms Evans' evidence as to what happened in the bedroom, the case was entirely circumstantial. The submissions also raised an issue (not developed in oral argument) that the prosecution had relied upon lies told by the applicant after the death, without any clear direction as to how the lies might have implicated the applicant, beyond establishing that "he knew that he did something wrong", which could have merely involved the burying of the body after the event. (a) further directions 1. Insofar as the question of further directions was raised, the applicant accepted that he again required leave under r 4. No further proposed directions were formulated. That is a matter of some importance because the trial judge gave clear and unchallenged directions as to what constitutes "circumstantial evidence" and how it was relied upon by the prosecution. [9] Those directions were given in the context of the primary prosecution case, being that the applicant was involved in the murder of Ms Ayers, but applied equally to the alternative verdict. The judge then identified eight particular matters which were relied upon in support of the prosecution case. [10] The eight matters were identified in the following terms (using the first names of the individuals): "(1) The accused was physically very close to the deceased when [Ms Evans] and [XY] came into the room. The accused's evidence was that he jumped off the bed on to the floor on the side away from the sliding door. The Crown says that you would infer that this was to assist [Ms Evans] in the attack because if he had stayed where he was, it would have been difficult to continue the attack. Mr Trevallion [counsel for the accused at trial] says that there is no evidence, if you reject [Ms Evans'] evidence, of any readiness of the accused to participate or assist. (2) The Crown says there is no rational explanation why, if the accused was an innocent by-stander, he did nothing to assist [Ms Ayers] particularly where, contrary to his own evidence, [Ms Evans], [XY] and Derbridge all say that they heard [Ms Ayers] call out to stop. The Crown pointed to what he said to the police, that is the accused, that he made no enquiry as to how she was. He also gave that evidence. Mr Trevallion submitted that his failure to enquire was because the accused knew she was dead. (3) The accused did not call the police, which the Crown said he had a legal duty to do. Nor did he call the ambulance, saying first that he had no credit left on his phone but subsequently saying he had no intention of calling the ambulance. (4) The accused said that he then went with Kiwi to the fire to have a drink without knowing whether [Ms Ayers] was alive or dead. The Crown says that that is not believable in the circumstances and says [Ms Evans'] evidence about she and Duffy discussing what was to be done with [Ms Ayers'] body should be accepted. (5) The accused's evidence was that after burying [Ms Ayers], he and Derbridge then went looking for the guns. They found where they were, broke into the gunsafe and took them. To do that, the Crown says, not worrying whether [Ms Ayers] was dead or not in the bedroom, is irrational if you are not involved in the killing. (6) The accused's demeanour in the taxi on the trip to Picton and the fact that the accused feels the need to answer the taxi driver when he claims that [Ms Evans] did the killing and he was not involved. You will recall that the taxi driver asked, 'Where's the other one?' and the accused admitted that he said, 'She passed out about 20 minutes after we got home'. In relation to this, Mr Trevallion says that you will need to look at the DVD of the taxi trip, [two exhibits, being extracts from the DVD and the DVD of the full journey], and remember that the accused was heavily intoxicated with drugs. …That goes particularly, Mr Trevallion says, to his demeanour in the taxi. (7) The accused spends the next few days with [Ms Evans] buying drugs and trying to sell the guns. (8) The accused's continuing association with [Ms Evans], including letting her sleep over at his place some days later, as well as going with her to court to support [XY]. Mr Trevallion said that the meetings with [Ms Evans] were fortuitous and that the accused was trying to stay away from her." 1. The judge's directions then turned to the question of lies told by the applicant, which formed part of the prosecution case. Just as there was no criticism of the directions with respect to circumstantial evidence, there was no criticism of the directions with respect to lies, beyond one raised at trial by counsel for the accused after the jury retired, which resulted in a further direction. It is convenient to set out the discussion in that regard, because it illustrates the need for care in considering the form of any further direction. [11] "TREVALLION: … The other matter was in respect to lies, I would ask your Honour to direct them specifically in respect to the lies in the second interview where the accused has denied being involved in the disposal of the body; that an explanation for his lies, other than concealing his guilt for the murder, would be concealing his guilt for the disposal of the body and that's a good example of the way they should assess and look at the issue of lies. HIS HONOUR: I think there's something in that, Madam Crown. CROWN PROSECUTOR: I don't have a difficulty with that. HIS HONOUR: Yes, I think you're right, Mr Trevallion. TREVALLION: Thank you, your Honour. HIS HONOUR: Except this, in carrying the body down the stairs, he was already an accessory. TREVALLION: That is true, your Honour, and I considered that but he then moves away from that, tries to distance himself from that position. HIS HONOUR: You say an inference could be that he was trying to distance himself as being found as an accessory after the fact and not anything to do with being found guilty of murder? TREVALLION: Whether it's expressed 'accessory after the fact' or simply for his guilt in the disposal of the body, I have no difficulty with it being expressed either way. I simply think it's whether he's already partially made some admissions to that. HIS HONOUR: I think I will re-direct them about that." 1. The further direction was given in terms which were accepted by counsel as appropriate and not the subject of complaint on the appeal. [12] 2. As the lies were relied upon as part of the prosecution case, to be evaluated below, it is appropriate to set out the matters relevant in this regard from the summing up. [13] "In this case the Crown has identified certain lies told by the accused and certain things that the accused did which the Crown says demonstrate a consciousness of guilt. They are these: 1. The time at which the accused had sexual intercourse with [Ms Ayers] at Rockbarton Road. In his first record of interview the accused said that after sexual intercourse with [Ms Ayers] in the granny flat he and the deceased went down to the fire. He then had a drink with Kiwi and then rang a taxi. He also said he told [Ms Evans] he wanted to leave. He and Kiwi went to get a taxi. This account left the deceased unharmed at the property when the accused left. In Court he admitted that [Ms Ayers] was murdered after he had sex with her in the granny flat. 2. This is somewhat related to the first. In the first interview the accused said that he left the property because [Ms Evans] told him that she wanted to break into the house and to keep Marlboro – as he called her there – down at the fire. In his second interview he said that he and Kiwi had a drink by the fire and then he rang a taxi. He agreed in cross-examination that that was a lie. 3. In his first interview he said that while he was at the property the deceased was 'fine' and not unconscious. He agreed in cross-examination that that was a lie. 4. In his second interview the accused said that when [Ms Evans] and [XY] came into the room and [XY] hit the deceased on the head with a bottle he, the accused, realised what was happening and split down to the fire. He admitted in cross-examination that he was trying to distance himself from what was happening. 5. In his second interview the accused repeatedly said, and the Crown Prosecutor gave you all the references, repeatedly said that he only carried the deceased's body down the stairs but not to the grave site. He then walked Kiwi away from the area so he would not see anything. In cross-examination he admitted that he carried the body to the grave and he agreed that he had not told the truth in that regard in his interview. 6. In the taxi, when the driver asked about [Ms Ayers], the accused said that she passed out 20 minutes or so after they got to the place." 1. The directions given to the jury with respect to circumstantial evidence and with respect to the use of lies which may have been told by the accused were sound in all respects, including the ways in which the directions were linked to the evidence in the case. Counsel for the accused, who demonstrated a fine appreciation of the way in which the case was put and the ways in which the evidence could be used advantageously to his client, sought an appropriate redirection, which was provided in terms acceptable to him. There was, in these circumstances, no reason to consider that further directions should have been given. Leave to rely on this aspect of ground 3 must be refused. (b) unreasonable verdict 1. This aspect of ground 3 was articulated was in the following manner: [14] "The question raised by this ground is whether, having made an independent assessment of the whole of the evidence, this Court considers that it was open to the jury to be satisfied of the Applicant's guilt beyond reasonable doubt if the jury rejected [Ms Evans'] evidence. [15] The question is whether the jury must, as distinct from might, reasonably have entertained a doubt about the applicant's guilt. [16] " 1. A submission formulated in these terms encounters two difficulties, one factual and one legal. They are interrelated. 2. The legal difficulty is to formulate, in terms applicable to the particular case, the exercise required of an appellate court asked to review a jury verdict of guilty. How that function is articulated will affect any factual assumptions which are required to be made. However, it is convenient to note first the factual difficulty inherent in the submission. 3. The submission invites the Court to accept or assume the proposition that the jury rejected Ms Evans' evidence. That raises two questions, namely (i) what precisely was rejected and (ii) why should the assumption be made? If by "reject" the submission adopted the position of the accused at trial, namely that Ms Evans was a liar who simply could not be believed, that proposition cannot be accepted. Significant aspects of Ms Evans' evidence were uncontradicted, including that she came into the room where the applicant and Ms Ayers were in or on the bed, and that Ms Evans put a belt around Ms Ayers' neck and pulled it tight. If a more limited meaning were intended, perhaps that Ms Evans could not be believed in respect of any aspect of her evidence which inculpated the accused, that might be more plausible, although the exercise of isolating those parts of the evidence and explaining how they were dealt with in cross-examination was not undertaken. 4. In relation to the second issue, it is not clear why the Court should assume that the jury "rejected" Ms Evans' evidence, if by that it is meant that the jury found that she lied. A proper reading of the jury verdict, acquitting the accused of murder but convicting him of manslaughter, must have involved a critical finding as to the accused's state of mind, namely that the jury were not satisfied beyond reasonable doubt that he had the necessary state of mind for murder. Ms Evans could not have given evidence directly as to his state of mind. Further, the fact that the jury were not satisfied beyond reasonable doubt as to some aspect of her evidence did not mean that they "rejected" her evidence, nor that they accepted the accused's assertion that she was a liar. 5. In short, it is not possible for this Court to assess the evidence given at trial by making assumptions as to how the jury must have reasoned, in circumstances where there were alternative courses available to them which permitted a verdict of manslaughter. 6. The legal difficulty encountered in addressing this ground arises from different formulations of the function of the Court as articulated by the High Court. Unsurprisingly, the language used in a particular case is apt for the circumstances raised in that case, but may not be readily applied in other circumstances. Thus, as the majority made clear in M v The Queen, the first limb of s 6(1), namely that the verdict is "unreasonable, or cannot be supported, having regard to the evidence", does not confine the power of the court to set aside a verdict which is unsafe or unsatisfactory for some other reason, and may, therefore, constitute a miscarriage of justice within the third limb. [17] In other words, it is open to the appeal court to overturn a jury verdict, despite the constitutional function of the jury to determine questions of fact, in exceptional cases, in order to prevent what appears to be a potential miscarriage of justice, should the verdict stand. The possibilities of a miscarriage are not limited to the first limb. [18] 7. Secondly, the Court has explained that, "[w]here, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [19] The difference between the question of law and the question of fact required to be addressed by the appeal court is that questions of reliability and credibility may need to be addressed in the latter (factual) assessment, but not the former. However, at that point a qualification is added, namely that "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." [20] In order to be satisfied that there is "a significant possibility" that the accused was not guilty, the court must act upon a record which "contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force". In principle, where such weaknesses do not lead the appeal court to entertain a doubt, the assessment of reliability and credibility should be left to the jury. 8. Application of these principles in a particular case will involve a determination as to what margin for error may properly be left to a jury. It is difficult, from reading a transcript, to know whether a particular witness appeared credible and reliable, or otherwise. Indeed, a transcript may suggest that a particular witness was lying, whereas in the immediacy of the trial, the jury might have obtained quite a different perspective. 9. The submissions for the applicant in the present case sought to formulate alternative inferences based on the circumstantial evidence and the lies. Most of the matters were raised expressly in submissions for the accused at trial. There is no reason to suppose that the case for the accused was not competently and thoroughly presented. To reiterate such matters on appeal is not to demonstrate that the verdict was unreasonable, or unsupported by the evidence, or that it otherwise involved a miscarriage of justice. Rather, it tended to emphasise the matters which the jury should be taken to have rejected. 10. Briefly stated, the circumstances supporting a conviction, disregarding particular aspects of Ms Evans' evidence, were as follows: 1. Ms Ayers was assaulted and strangled whilst lying on a bed; 2. the assault and the principal acts of strangulation were undertaken by the applicant's girlfriend and her younger sister; 3. the applicant, having been in bed with Ms Ayers, jumped out and stood beside the bed whilst these events took place; 4. the victim cried out 'Please stop', which must have been heard by the applicant; 5. the applicant's claim that he was 'freaking out' while the assaults took place was consistent with him understanding the seriousness of the assaults; 6. inconsistent with him 'freaking out', but consistent with his willingness to participate, was his continued presence in the room, whether or not he provided active assistance, and his conduct immediately after the victim went limp. 1. To these elements must be added the other circumstantial evidence and the lies, all of which were required to be evaluated in context and some of which were more persuasive than other aspects of the evidence. 2. Without repeating the whole of the material left to the jury in the summing up, and recognising that it was the function of the jury to assess the emphatic challenges to the veracity of Ms Evans and to the veracity of the accused, there was simply no basis for saying that the jury must have entertained a reasonable doubt. Accordingly, ground 3 must be rejected, to the extent that it did not require leave pursuant to r 4. Sentence appeal – ground 4 1. The ground of appeal with respect to sentence for the offence of manslaughter was in the following terms (ground 4): "His Honour erred in finding that the offender's participation in the killing of the deceased was to kneel over or next to the deceased and put pressure on her back and/or her arms to hold her down." The applicant needed leave to appeal against sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act. 1. The manner in which the trial judge dealt with the sentencing is revealed by the judgment on sentence, R v Duffy (No 7). [21] Those reasons commenced by setting out the background with respect to the trial and the circumstances up to the point at which Ms Ayers was assaulted in the bedroom. The judge referred to the evidence of XY that she was not in the bedroom at the time Ms Ayers was killed, evidence which he rejected. [22] The judge then stated: [23] "It is necessary for me to make findings consistent with the jury's verdict. Any findings adverse to the offender must be beyond reasonable doubt. However, I am not obliged to make the findings that are most favourable to the offender." 1. That approach was consistent with well-established authority as to questions of onus and standards of proof. [24] There was no suggestion that the judge did not apply these principles. 2. The judgment then set out the account given by Ms Evans and that given by the offender. [25] The judge rejected various aspects of his evidence, [26] and continued: [27] "In the light of what the offender undoubtedly did after [Ms Ayers] was killed (the failure to assist her himself, the failure to call for any assistance, the burying of her body by him in a grave dug by him, the stealing of the guns, his demeanour and behaviour in the taxi afterwards, and his ongoing dealings with [Ms Evans] that day and thereafter) I reject his evidence that he was not involved in her killing and that he simply stood by shocked and 'freaking out' as he described it." 1. The critical findings as to the death of the deceased were set out in the following passage: "[24] What I find happened in the bedroom is this. The offender and [Ms Ayers] were having sex on the bed. [Ms Evans] and XY entered the room with the intention at that stage, at least of hurting [Ms Ayers], principally because of the bad blood that had developed during the night between XY and [Ms Ayers], resulting in two arguments where, at one stage, they had to be physically separated. Whether or not [Ms Evans] whispered to the offender that they were going to bash her I cannot say, but it soon became clear to the offender, who knew of the discord between XY and [Ms Ayers], that [Ms Evans] and XY intended at least to assault [Ms Ayers]. XY hit [Ms Ayers] with a bottle. [Ms Evans] then put a belt around [Ms Ayers'] neck. [25] When [Ms Evans] put the belt around [Ms Ayers'] neck [Ms Ayers] was face down on the bed – that was the way her body was seen by [Ms Evans], XY and Derbridge after she had been killed. I reject the offender's evidence that [Ms Ayers] was lying on her back when she was attacked. The offender was kneeling over or next to [Ms Ayers] and put pressure on her back and/or her arms to hold her down. Evidence in the post-mortem report identified bruising on the right lower back, the back of the upper right arm and the back of the right wrist all of which occurred before death. The offender did not know that [Ms Evans] intended to inflict grievous bodily harm nor intended to kill [Ms Ayers], nor did he intend that [Ms Evans'] actions would produce such results. I cannot be satisfied beyond reasonable doubt that the offender himself pulled on the belt. I am, however, satisfied beyond reasonable doubt that the offender assisted [Ms Evans] to do an act which was an unlawful and dangerous act. [Emphasis added.] … [27] I accept the evidence of [Ms Evans], XY and Derbridge that [Ms Ayers] cried out whilst she was being assaulted. She said either 'please, no' or 'please stop' or 'please don't'. I reject the offender's evidence that [Ms Ayers] said nothing. The offender must have known that what was being done to [Ms Ayers] was unwelcome and was being resisted by her. He did not, however, cease his assistance to [Ms Evans] even though he did not intend to cause [Ms Ayers] really serious injury or worse." 1. The ground of appeal challenged the finding of fact at [25] (emphasised by italics) that the applicant was actively involved in that he was "kneeling over or next to [Ms Ayers] and put pressure on her back and/or her arms to hold her down." The applicant further challenged the suggestion that the post-mortem report gave support to that finding. 2. The latter complaint was that there was no "post-mortem report" but only the oral evidence of Dr Brouwer, given before the jury in the course of the trial. 3. It was clear from that evidence that Dr Brouwer had prepared a post-mortem report and gave her evidence by reference to it. Further, a bundle of photographs, which formed part of the report, were admitted without objection and became Ex V. [28] There is no doubt that the judge was referring to this material. His description of the bruising reflected the evidence of Dr Brouwer and Ex V. The complaint is without substance. 4. Secondly, the applicant complained that the only witness to give evidence that he had been holding Ms Ayers down was Ms Evans, who demonstrated to the police that the applicant had his legs on the back of her shoulders and was applying pressure in the middle of her spine, between her shoulder blades. [29] It was true that the judge's finding did not reflect that evidence, although it is by no means clear whether that constituted part of the account which involved the applicant pulling on the belt, a matter as to which the judge was not satisfied beyond reasonable doubt. 5. It was, nevertheless, open to the judge to accept evidence that the applicant had assisted in holding Ms Ayers down. Ms Evans gave evidence to that effect and that Ms Ayers was struggling. It was certainly open to the judge to conclude that Ms Evans required some assistance to overcome Ms Ayers' struggles. The bruising identified by Dr Brouwer was consistent with the applicant playing such a role. 6. In written submissions prepared before the sentencing hearing, the prosecutor contended: [30] "The Crown submits that the offence could not have been committed without the physical involvement of the offender Duffy. On his evidence, Evans managed to strangle the deceased without any physical assistance with the exception of a hit on the head to the deceased by [XY]. [XY] denies hitting the deceased. There was no evidence that the deceased cried out in pain having been hit on the head. There is no medical or other forensic evidence of such a hit; suggesting either that it did not occur or that if it did, it was not severe enough to subdue the deceased. The evidence of both offenders was that the deceased struggled when attacked by Evans. The demonstration and description given by the offender Duffy in evidence of the offender Evans being able to strangle the deceased to death by herself without the deceased's arms or legs being restrained is not believable. The Crown submits that the evidence of Evans that the offender Duffy participated in the assault should be accepted. Alternatively, there is corroborative evidence that the deceased had bruising on her back. This is consistent with the offender Duffy participating to the extent of sitting on the deceased's back to restrain her while Evans tightened the belt around her neck. On Duffy's evidence, [XY] did not take part in restraining the deceased while the attack with the belt took place. The Crown submits that the Court should find beyond reasonable doubt that the offender Duffy physically joined in the attack on the deceased initiated by Evans." 1. This issue was squarely raised in submissions by counsel for the offender in the course of the sentencing hearing. [31] The discussion extended to the assault with the bottle by XY, the placing of the belt around the neck of Ms Ayers and holding Ms Ayers down. With respect to the use of the belt, counsel for the offender submitted that if the jury had found that he was party to an agreement to use the belt, they would have convicted him of murder, not manslaughter. [32] The judge suggested that that conclusion also depended on a finding as to his intention; counsel maintained his submission that use of the belt would have resulted in a conviction for murder. [33] There followed an exchange as to physical assistance: [34] "HIS HONOUR: What do you say about the Crown's submissions that without his physical assistance by holding Ms Ayers down, [Ms Evans] couldn't have successfully achieved what happened[?] TREVALLION: That is pure speculation. My friend referred to a bruise on the lower back of the deceased, but there was no evidence at the trial as to when that was caused or how it was caused. This relies on the evidence of [Ms Evans], which was obviously rejected by the jury. The evidence is that the offender was putting pressure on the upper part of the deceased's back, not the lower part. Whatever bruises were at the lower part of the back, there is no evidence of them being connected in any way to the actual killing of [Ms Ayers]. … HIS HONOUR: It is difficult to see how, if she wasn't being held down, how she could have been strangled so quickly or even at all. … TREVALLION: Once the pressure was put around the neck. HIS HONOUR: Yes, but before the pressure was put around, Miss Evans had to put the belt round and loop it through. TREVALLION: Yes. HIS HONOUR: If Miss Ayers was not being held down at that time, it is very unlikely that she would have been killed so quickly." 1. It was undoubtedly true that the finding of physical assistance could not be justified by reference to the precise terms of any particular evidence. Nevertheless, the finding could not be described as speculative. It was based on an understanding of various parts of the evidence and the drawing of inferences, some of which found support in circumstantial evidence. There can be no suggestion that the judge mistook the facts, nor that the inferences drawn were not reasonably open. He expressly identified the relevant standard of proof, as had the senior Crown prosecutor in her submissions. The finding under challenge is not one which should be rejected by this Court. 2. That being the only basis on which the sentence was challenged, the applicant should have leave to appeal against sentence, but the appeal should be dismissed. Orders 1. With respect to the application for leave to appeal against conviction: 1. Refuse leave pursuant to r 4 of the Criminal Appeal Rules to rely upon grounds 1 and 3, to the extent that the latter involves a challenge to the directions given to the jury. 2. Refuse leave to appeal pursuant to ground 3, pursuant to s 5(1)(b) of the Criminal Appeal Act, in so far as it alleged that the verdict was unreasonable and not supported on the evidence, or otherwise involved a miscarriage of justice. 3. Ground 2 not being pressed, refuse the application for leave to appeal against conviction. With respect to the application for leave to appeal against sentence: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. LATHAM J: I agree with Basten JA. 2. CAMPBELL J: I agree with Basten JA. ********** Endnotes 1. R v Duffy (No 7) [2015] NSWSC 1321. 2. Children (Criminal Proceedings) Act 1987 (NSW), s 15A. 3. (1990) 171 CLR 207 at 214-215. 4. (1995) 183 CLR 108 at 113. 5. [2016] HCA 30; 90 ALJR 918 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). 6. McAuliffe v The Queen (1995) 183 CLR 108 at 114 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ; Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3; Macklin, Murphy and Others' Case (1838) 2 Lew CC 225 per Alderson B [168 ER 1136]. 7. Summing up, pp 16-17 8. Summing up, p 18. 9. Summing up, pp 61-62. 10. Summing up, pp 62-65. 11. Summing up, pp 82-83. 12. Summing up, p 86. 13. Summing up, pp 65-67. 14. Written submissions for applicant, filed 8 March 2017, par 118. 15. M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at [25], [55]; SKA v The Queen (2011) 243 CLR 400 at [11], [14]. 16. Libke v The Queen (2007) 230 CLR 559 at [113] per Hayne J, Gleeson CJ and Heydon J agreeing. 17. M at 493. 18. Compare Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7] (Gleeson CJ). 19. M at 493. 20. M at 494. 21. [2015] NSWSC 1321. 22. Duffy (No 7) at [17]. 23. Duffy (No 7) at [18]. 24. See R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA, Southwell AJA); The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Sandford (1994) 72 A Crim R 160 at 194 (Hunt CJ at CL, Smart and Studdert JJ agreeing) (not bound to take most lenient view). 25. Duffy (No 7) at [19] and [20]. 26. Duffy (No 7) at [21]-[22]. 27. Duffy (No 7) at [23]. 28. Tcpt, 30/04/15, p 503(25). 29. Tcpt, p 521. 30. Written submissions on sentence, pp 5-6. 31. Tcpt, 21/08/15, pp 23-26. 32. Tcpt, p 24(40)-(45). 33. Tcpt, pp 24(46)-25. 34. Tcpt, pp 25(5)-26(10). 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: 26 April 2017