Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Scott v R [2017] NSWCCA 296 Hearing dates: 28 July 2017 Date of orders: 06 December 2017 Decision date: 06 December 2017 Before: Hoeben CJ at CL at [1]; McCallum J at [243]; Bellew J at [244] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – murder – victim stabbed in course of fight – conflicting evidence from heavily intoxicated witnesses – change of defence counsel during trial – plea of guilty to manslaughter during trial – refusal by Crown to accept plea – application to discharge jury refused on five occasions – whether refusal to discharge jury gave rise to a miscarriage of justice – whether verdict was unreasonable or could not be supported by the evidence – no clear evidence of when stabbing of deceased took place – appeal dismissed. Cases Cited: AL v Regina [2017] NSWCCA 34 Aslett v R [2009] NSWCCA 188 Crofts v The Queen [1996] HCA 22; 186 CLR 427 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Maric v The Queen (1978) 52 ALJR 631 Mikael v The Queen [2015] NSWCCA 294 R v Ball (1961) SR NSW 37 R v Dudko [2002] NSWCCA 336; 132 A Crim R 371 R v Knape (1965) VR 469 R v Owen (unreported, NSWCCA, 7 July 1988) R v Scott (No 5) [2015] NSWSC 462 R v Scott (No 6) [2015] NSWSC 678 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 The Queen v Glennon [1992] HCA 16; 173 CLR 592 Trieu v R [2012] NSWCCA 169 Walker v R [2014] VSCA 177 Category: Principal judgment Parties: Michael Vincent Scott – Applicant Regina – Crown Representation: Counsel: C Loukas SC/Mr B Dean/Ms R Khalilizadeh – Applicant M Cinque SC – Crown Solicitors: L Gittani – Applicant Solicitor for Public Prosecutions – Crown File Number(s): 2013/104881 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Scott (No 6) [2015] NSWSC 678 Date of Decision: 29 May 2015 Before: Wilson J File Number(s): 2013/104881 Judgment 1. HOEBEN CJ at CL: Offence and sentence Michael Vincent Scott (the applicant) appeared for trial before Wilson J and a jury on 10 March 2015. He was arraigned on an indictment charging him with the murder of Riley Dehn (the deceased) on 5 April 2013 at Cessnock, New South Wales. 1. The applicant was convicted of murder on 10 April 2015. On 29 May 2015 he was sentenced to imprisonment with a non-parole period of 18 years and an additional term of 6 years. He will be eligible for parole on 5 April 2031. 2. The applicant has appealed against the conviction on two grounds: Ground 1 – Her Honour erred in failing to discharge the jury following the cumulative effect of both the admission of evidence going to the applicant's bad character and the withdrawal and replacement of defence counsel, constituting a miscarriage of justice. Ground 2 – The verdict was unreasonable or cannot be supported by the evidence. Overview of trial 1. On 10 March 2015 the applicant was arraigned, pleaded not guilty and the trial commenced. On Thursday, 26 March 2015, after the trial had proceeded for 11 days and over 850 pages of transcript, defence counsel, Mr Robert Cavanagh, was granted leave to withdraw due to an "insuperable ethical conflict". On the same day Mr Wayne Flynn formally appeared as new defence counsel. The trial was adjourned to Monday 30 March 2015. 2. On 30 March the applicant was re-arraigned before the jury. He pleaded "not guilty to murder but guilty to manslaughter based on the ground of self-defence". The plea was not accepted by the Crown in discharge of the indictment and the trial continued. 3. On Tuesday, 7 April 2015 at 3.03pm the jury retired to deliberate and on Friday, 10 April at 10.40am the jury returned a verdict of guilty of the murder of the deceased. 4. In broad outline, the Crown case was that in the early hours of Friday, 5 April 2013 the applicant and his girlfriend were involved in a fight with a group of young people which occurred in the car park of the Cessnock swimming pool. The group of young people had been "drinking and socialising" at a nearby hotel which closed at 2.30am. The applicant at about the same time had gone to a nearby park to meet his girlfriend who had been asked to leave the hotel. The group of young people, along with the applicant and his girlfriend, came together as they were walking along the street minutes before the fight occurred. 5. The Crown case was that the applicant was carrying a knife, which was part of a multi-tool device. At the time of the fight in the car park, he produced it and fatally stabbed the deceased at an early point in the fight when, or just after, the deceased had approached him. The evidence relied upon by the Crown will be examined in greater detail in these reasons. 6. The applicant's case at trial was that he acted in self-defence. He did not give evidence. 7. From 30 March 2015, following the change of counsel, the applicant's case was that he "acted from a reasonable belief that he had to act in the way he did to defend himself although acknowledging that it was not a reasonable response to the situation as he perceived it to be" thereby amounting to excessive self-defence reducing murder to manslaughter (sentence judgment R v Scott (No 6) [2015] NSWSC 678 at [62]). The evidence at trial 1. In order to better understand the evidence, it should be noted that the applicant was known by the nickname "Cycle" and the Cessnock Hotel was known as "Tinks" or "Tinklers". 2. The Crown case was based on the evidence of witnesses from four categories: * People who were present at the Cessnock Hotel before the incident and in the vicinity of the car park at the time of the incident; * People who gave evidence about the applicant's movements and conversations before and after the incident; * Police officers who were at the scene and who conducted the investigation; and * Experts who conducted the crime scene examination, DNA testing and autopsy. 1. Connor Young gave evidence that he arrived at the Cessnock Hotel some time after 7.30pm and met with Aiden Bowen-Duff and Jake Burrage. Young drank eight to ten glasses of Tooheys New beer during the night and felt fairly drunk by the time he left the hotel. He met the deceased for the first time that night. While at the hotel, he saw two women, Melanie O'Neil and Hayley Orchard, arguing with the security guards and being escorted out the back gate of the hotel. He left the hotel at about 1 or 1.30am with Charmaine Allen, Bowen-Duff and Burrage. It was not long after O'Neil and Orchard had left the hotel. As his group was walking towards the Cessnock Swimming Pool, he noticed O'Neil and Orchard standing in the swimming pool car park with the applicant. The applicant was yelling at the two women but Young could not recall the words that he used. 2. Young told the applicant to "show some respect". In response to which the applicant came towards him with his fists raised and they started to fight. Young was wearing jeans and a black T-shirt, which he removed before engaging in the fight. 3. He and the applicant exchanged punches for about 30 seconds when Allen grabbed him by the shoulder and told him to stop. The applicant then punched him on the left cheek causing him to fall to the ground near the black steel fence at the back of the car park. Bowen-Duff helped Young to stand up. When he did so he could only see Allen, Bowen-Duff and Burrage who had blood coming from his eyebrow. A short time later, he walked to the hospital with Allen and Bowen-Duff. As a result of the incident, he had grazes to his knuckles and a sore face. 4. In cross-examination, Young denied that O'Neil and Orchard were yelling at the applicant when his group left the hotel. He said that the only person he heard was the applicant shouting. Young denied that he wanted to fight. He only left the footpath because the applicant was shouting at O'Neil and Orchard. He conceded that in his statement of 5 April 2013 he had said "I had intentions to fight the male so I took off my shirt and dropped it on the ground". Young said that he only formed that intention after the applicant approached him. He agreed that he was feeling pretty drunk at the time of the fight and had trouble recalling exactly what occurred. 5. Brodie Jobson gave evidence. The effect of that evidence was that he finished work at about 9pm and went to the Cessnock Hotel to meet Leina Uaongo and the deceased. At the hotel, he consumed three to five cans of Jim Beam and Coke. At closing time, he and the deceased left through the back exit and walked towards West Cessnock. Uaongo and O'Neil were walking with them but he could not recall other people walking with or in front of them. 6. Jobson heard screaming from the swimming pool car park. He and the deceased walked back in that direction. From the footpath, Jobson could see that the applicant was jumping on Young who was "getting his head kicked into the ground". He saw the applicant kick him three times. The deceased walked into the car park to break up the fight. Jobson saw him pull the applicant off Young. The applicant then hit the deceased on the side of the face about four times. The applicant and the deceased wrestled and moved towards the low fence with the bushes. 7. The deceased pinned the applicant against the low wooden fence and hit him in the face four or five times. After 10 to 15 minutes, Jobson saw the deceased walk off towards the IGA car park on the other side of Wollombi Road. Jobson did not see Uaongo at any time near the fight between the applicant and Young, or the applicant and the deceased. 8. The applicant and Orchard walked backwards along the road towards KFC. The applicant had his hands in his pockets and it looked like he was holding onto something inside his pockets. He had a cut on his right forearm that was about four or five centimetres long. Jobson walked into the middle of the road and said to the applicant "Just leave it. Just go home". Orchard then punched Jobson on the side of the mouth. The applicant and Orchard jumped into a dark blue Ford Falcon, which drove in the direction of West Cessnock. 9. Jobson returned to the car park where O'Neil spoke to him. He ran across the road and saw the deceased lying face down in front of the radio station at the corner of Vincent Street and Maitland Road. He held the deceased in his arms. When police and an ambulance arrived, Jobson called the deceased's mother. He was tipsy during the incident but his adrenaline kept him going. 10. In cross-examination, Jobson agreed that he had formed the impression that the applicant was kicking Young but did not actually see it. He was some distance away and it was dark. The applicant and the deceased were holding onto each other's shirts while they were wrestling. When pressed, he agreed that it was dark and that he could have been wrong. When the applicant went onto the road, he had both hands in his pockets. It looked like he was holding onto something with one hand which was a closed fist. Jobson agreed that he could not see what was in the applicant's pocket. He could not recall what the applicant was wearing at the time. He could not recall seeing any tattoos on the applicant's chest. He agreed that there was better lighting in the middle of the road and that the applicant was directly in front of him. 11. In re-examination, Jobson said that he actually did see the applicant kicking the side of Young's face and jumping on his head. 12. Charmaine Allen, known as "Kamii", gave evidence. The effect of that evidence was that on Thursday, 4 April 2013, she and her boyfriend, Bowen-Duff, arrived at the Cessnock Hotel between 10 and 10.30pm where they met with Burrage, Jobson, Uaongo and Young. She drank five to ten vodka and raspberry mixed drinks. She saw the deceased and chatted with him throughout the night. She saw him speaking with two women, O'Neil and Orchard, in the back courtyard. 13. At about 2.30am, Allen left through the back exit of the hotel. She was with Bowen-Duff, Burrage, Jobson, Uaongo and Young. She could not recall where the deceased and Jobson were. She could hear O'Neil and Orchard yelling from a bench in the park near the main road. They were cursing at the group and yelling out that they were "dogs". They blamed Burrage for being kicked out of the hotel. The group crossed Allandale Road and walked down Wollombi Road. O'Neil and Orchard followed them along Wollombi Road and continued to yell. The applicant was with the women and said to those in the group to "have a go" and to "punch on". He was wearing a baseball cap, baggy pants and a shirt. 14. Young cursed at the applicant and pushed him. The applicant punched Young in the face and Young fell to the ground in the middle of the swimming pool car park. Allen was standing nearby with Uaongo and Bowen-Duff. She saw the applicant go to kick Young while he was on the ground and then saw Uaongo grab the applicant and push him against the fence. The deceased went into the car park to help. 15. Young stood up and wanted to keep fighting. Allen grabbed him and tried to calm him down. It looked like the applicant was about to bite Uaongo on the shoulder. The deceased went towards them and punched the applicant. The applicant swung back at the deceased and Uaongo let go of the applicant. The applicant and the deceased continued to throw punches at each other, about 10 each, as they moved towards the footpath on Wollombi Road. Allen saw Orchard near the two men yelling but she could not recall seeing anyone else nearby. 16. Orchard pulled a bottle from her bag and smashed it over Burrage's forehead. Suddenly the fight between the applicant and the deceased stopped. The deceased told Allen that he was going for help and she saw him jog across Wollombi Road. He was holding his right arm with his left hand and blood was running down his right arm. Allen turned away and saw Orchard grab Uaongo and Uaongo push her off. 17. The applicant and Orchard walked back towards KFC. Allen heard them say that they would bring Callum, Orchard and Hayden Rigby down to "flog the boys". A maroon Ford Falcon travelling east stopped in the middle of Wollombi Road and the applicant and Orchard jumped in. The car did a U-turn and drove west. 18. Burrage had a cut on his eyebrow that was bleeding. Young also had blood on his face and hands. Allen could see Bowen-Duff and Uaongo but not Jobson. Young and Bowen-Duff followed the car towards Mount View Road and Allen followed them. Young ran towards a woman on a bridge, who he later said was Orchard. Allen, Bowen-Duff and Young then walked to the hospital, and were stopped and questioned by police on the way. 19. In cross-examination, Allen agreed that she went into the car park when Young fell to the ground. Before the deceased went to assist Young, there had been no interaction between him and the applicant. She did not see anyone else near the applicant and Young until Uaongo and the deceased went in to help. Allen could not recall seeing any tattoos on the applicant and she was not sure whether he was wearing a shirt. She could not recall seeing anyone with a cut off golf club in the area. 20. Allen was almost certain that the applicant and the deceased were on the ground at one point and she saw the deceased get up from the eastern side of the car park near the footpath. She was certain that they were not closer to the bushes at the fence. Allen did not see anyone besides the applicant and Orchard go on to the road. Allen saw the woman at the bridge at Mount View Road but could not tell if it was Orchard. 21. Leina Uaongo gave evidence. The effect of that evidence was that on Thursday, 4 April 2013 she finished work just before 10pm and went to the Cessnock Hotel where she met up with Allen, Burrage, Bowen-Duff and Young. She drank three cans of Jim Beam and Coke while at the hotel. She saw the deceased at the hotel during the evening. Uaongo noticed two women, O'Neil and Orchard, being disruptive while she was singing karaoke. She saw them with cans of Double Black in their hands all night. They were swearing and being loud. The security guard spoke to the women and later asked them to leave. 22. Uaongo looked over the fence in the back courtyard of the hotel and saw the two women sitting in the park at the table closest to Wollombi Road. They were drinking out of bottles and Orchard was yelling "you fucking putrid cunts. Security at Tinks is fucking scum. I'll get you back for this". 23. At 2.30am Uaongo left the Hotel with the deceased, Allen, Bowen-Duff, Burrage, Jobson and Young. The group left through the back exit and walked over the footbridge. Uaongo could hear O'Neil and Orchard yelling and cursing. The group walked along the footpath on Allandale Road on the side of the swimming pool towards the intersection with Wollombi Road. O'Neil and Orchard were walking along Wollombi Road and met up with the group as they approached the intersection. Orchard spoke aggressively. Uaongo saw a man approach the group from the west. She identified him as Cycle. He was pacing and appeared to be angry. He had a long metal stick like a golf club. He was wearing a hat with a rat's tail. Uaongo asked him what the stick was for and he replied "you know, to have fun with". Uaongo did not see the stick again after that conversation. 24. The applicant spoke to Orchard and then began "arcing up" at Young near the front of the swimming pool car park. The applicant said "I know what I fucking heard. You little cunt I'm just – you want a fucking go?". Orchard was behind Uaongo yelling "this little cunt is gunna get it". Young replied "you want to do this, you want a go". Uaongo saw the applicant and Young move into the car park with their arms raised and their fists clenched. They both removed their shirts and hats and threw them to the ground. Both of them were "mouthing off" at each other and Orchard was egging them on. Uaongo saw the applicant punch Young in the face knocking him to the ground. Uaongo and Allen were yelling "let's go home" (T.272-274). 25. Young stood up after a couple of minutes and the applicant hit him again causing him to fall back to the ground. The applicant stepped forward with his leg raised as if he were going to kick Young. Uaongo grabbed the applicant by the waist in a bear hug and held onto the bars on the gates with her arms underneath his. She held him in that position for a few minutes while he attempted to break free. The gates moved because of the force with which she was pushing. She could feel Young's feet kicking her from behind where he was lying on the ground and the applicant's feet kicking her from in front. The applicant's head moved towards her right shoulder and she felt his teeth latching on so she released him. 26. Allen pulled Uaongo back. Uaongo saw the applicant reach into his right pocket with his right hand, grab something out and flick it with a fast downward wrist motion. She said that it looked like a pocket knife with gadgets on the other end, similar to a tool she used in army cadets. At the time, the applicant was still directly in front of her and close to the gates. Uaongo saw the deceased come in from the left and hit the applicant. The applicant had the knife part of the tool pointed out and the other tools in his hand. He slashed the deceased's arm with an upward gesture. She could not see Young but presumed he was still on the ground. Uaongo did not see the knife again. 27. The deceased continued to hit the applicant on the face and they both moved towards the western fence of the car park. Uaongo saw the deceased punch the applicant's face more than 20 times. The deceased grabbed the applicant by the throat and pushed him over the fence. Uaongo, Allen and Young were nearby yelling at the deceased to stop. Young ran over and bear hugged the deceased. The deceased said to him three or four times "I've got your back bro, I've got your back". 28. Uaongo heard the applicant say to someone on his mobile "I want my boys down here now. I want them to the gate now. This is going down". The applicant and Orchard continued to yell "fuckwits", "fucking scum" and "Sin City rat". Orchard walked over to Burrage, who was still in the car park and said "Oh I know you, you're a putrid cunt". She punched Burrage in the face and struck him over the head with an alcohol bottle. Uaongo pushed Orchard away. Suddenly Uaongo heard the deceased scream. She looked over and saw him holding both arms, bracing his elbows. As he ran towards the east she heard him yell "I need to get help". Jobson ran after him. Uaongo did not see the deceased again. 29. The applicant and Orchard continued to act aggressively and curse at Young and he responded in the same manner. The applicant and Orchard walked west along the median strip on Wollombi Road. The applicant had his hand to his ear like he was on the phone again. A maroon Holden Commodore pulled up and the applicant and Orchard jumped in. The car did a U-turn and headed west. Orchard threw a bottle out of the car towards Young and yelled "fucking cunt". Uaongo saw Young walk in the direction of the car and Allen and Bowen-Duff followed him. Uaongo walked with Burrage to the hospital. 30. In cross-examination, Uaongo was adamant that the man with the stick was the applicant. She was certain that she was not mistaken. Uaongo said that she thought she saw tattoos on the applicant's arms but she was unsure about his chest and back. Uaongo stated that the applicant punched Young three times and that Young did not have a chance to punch the applicant. She conceded that she said to police on 6 April 2013 that she saw both of them throwing punches. Uaongo said that she formed the impression that the applicant was about to kick Young because he raised his leg back. She confirmed that he did not actually kick Young. 31. When asked about the tool that the applicant had, Uaongo was certain that she saw a knife. Uaongo conceded that she said to police on 6 April 2013 that she had presumed that there was a knife and that she had not actually seen a blade. She admitted that it was dark. Uaongo stated that she did not see the applicant punch the deceased. When the applicant and the deceased moved over to the low wooden fence, the applicant was pushed into the bushes and the deceased was standing over him. The applicant was not on the ground. At the time Uaongo, Burrage and Allen were four or five steps away and started to move closer. Uaongo could not see Orchard but could hear her. Uaongo said that she saw the applicant get into the back seat of the car. 32. In re-examination, Uaongo said that she thought the applicant had a knife because of "how he flicked it and how he used it". She said she was only a couple of feet away from the applicant and directly in front of him. 33. Aiden Bowen-Duff gave evidence. The effect of his evidence was that he and Jake Burrage arrived at the Cessnock Hotel at 7pm – 7.30pm on Thursday, 4 April 2013. They met with Allen, Uaongo and Young. Bowen-Duff drank two cans of Jack Daniels and Coke during the afternoon and eight or nine cans of Jack Daniels and Coke at the hotel. He saw the deceased at the hotel and he joined their group. Bowen-Duff noticed two women, O'Neil and Orchard, at the hotel and Orchard "looked like she had had a few to drink or on something". Her eyes were rolling and she was falling over. 34. Bowen-Duff left the hotel at closing time, at around 2am. He left through the back exit with the deceased, Allen, Burrage, Uaongo and Young. The group headed west through the park, and over the footbridge towards Allandale Road. O'Neil and Orchard were sitting at one of the tables near the footbridge. They were screaming "you dogs" and "fuckwits". The group crossed Allandale Road at the swimming pool and continued to walk up that road towards Wollombi Road. At the intersection, Bowen-Duff saw that the two women had followed them. Orchard yelled angrily at Burrage "you little grub. You got us kicked out of the pub". Burrage and Young both responded "fuck off". 35. As Bowen-Duff approached the entrance of the swimming pool car park, he heard yelling and turned around to see the applicant and Young fighting. The applicant and Young threw a number of punches at each other for about five minutes. Bowen-Duff saw Burrage walk into the car park, grab the applicant's shoulders and try to calm him down. Young, who had removed his shirt, continued to jump around. Orchard smashed a glass bottle over Burrage's head. Uaongo pushed Orchard away. At that stage, the deceased was standing near Bowen-Duff. The fight continued between the applicant and Young for another five minutes. They were rolling around in the middle of the car park. Orchard was walking around five to ten feet away, egging them on. 36. Bowen-Duff moved in towards the fight and tried to grab Young while Burrage tried to grab the applicant. The deceased moved from where he was standing, with Allen and Uaongo on the footpath at the entrance of the car park, to help with restraining Young. Then the applicant and the deceased began punching each other. They were at the edge of the car park near the low fence with the bushes. Bowen-Duff and Burrage were still trying to restrain Young. Bowen-Duff did not see Orchard at that stage and did not recall seeing Uaongo come over while he was in the car park. 37. Suddenly, Bowen-Duff could no longer see the deceased. The applicant walked to Wollombi Road and jumped into the rear left side of a maroon Ford and Orchard jumped into the rear right side. Young chased after the car and Bowen-Duff chased after Young. Bowen-Duff saw Orchard at the bridge on Mount View Road. Bowen-Duff and Young walked to the hospital. 38. Jake Burrage gave evidence. He drank about eight cans of Jack Daniels and Coke while at the hotel. He met the deceased for the first time that night. He saw that two women, O'Neil and Orchard, were asked to leave the hotel and he heard Orchard call the security guard "a dog". 39. Burrage left the hotel at closing time, about half an hour after O'Neil and Orchard. He was accompanied by Allen, Bowen-Duff and Young when he left through the back exit and walked across the footbridge in the park. He did not see the deceased. As he and his group walked west, Burrage saw the applicant on Wollombi Road coming from the east. The applicant met with O'Neil and Orchard near the entrance to the swimming pool car park. 40. Burrage said that everyone was yelling and it was difficult to understand what was being said. O'Neil and Orchard were abusing him. He saw the applicant hit Young and cause him to fall to the ground. Burrage saw the applicant pull something from his left pocket which appeared to be like a knife. He described it as "a Leatherman with little gadgets on it such as pliers, a screwdriver and a knife blade". He had seen a Leatherman a fair bit and used to own one himself. Burrage saw the applicant flip the knife out and hold it for a couple of seconds. He did not see Uaongo or the deceased at that stage. 41. Burrage ran in and pushed Young back onto the road at which time Orchard punched him in the nose. He blacked out and when he recovered he was in pain and bleeding from his nose. He saw that the applicant and Young were punching each other again. When he attempted to break up the fight, Orchard pulled him back by his shoulder and hit him on the head with a Bundaberg Rum bottle. Burrage walked towards IGA on the other side of Wollombi Road. When he was across the road he looked back to the car park and saw the applicant and the deceased close to the timber fence with the bushes, throwing punches at each other. Burrage continued to walk west along Wollombi Road and saw the applicant and Orchard walk past him. At that stage he was with Uaongo and Young. He saw a dark coloured Ford stop in Wollombi Road and the applicant and Orchard entered it. 42. Under cross-examination, Burrage agreed that he was pretty intoxicated and was staggering. He said that he concluded that the applicant had a Leatherman because he saw the flipping motion. He admitted that he did not actually see the knife, but made the assumption that it was a Leatherman. Burrage admitted that in his police statement he said that he did not see any object. He said that when he moved in closer to the applicant he did not see the Leatherman and it was not pointing at him. The last time he saw the Leatherman was when he was standing near the footpath. 43. Burrage was pretty sure that the applicant and the deceased had shirts on when they were fighting. When pressed, he said that the deceased did not have a shirt on but he was not certain. He said that one of the two men did not have his shirt on. Burrage was pretty sure that when the applicant and Young were fighting, they both had shirts on. 44. In re-examination, Burrage confirmed that he had consistently told police on a number of occasions that the applicant pulled out a Leatherman. He confirmed that he did not see a blade, but saw a device that looked like a Leatherman and saw the way that the applicant used it. 45. Melanie O'Neil gave evidence. She had been friends with the deceased for about four months and also knew the applicant and Hayley Orchard. Before going to the hotel, she and Orchard had walked to a bottle shop where she purchased a bottle of Smirnoff Vodka and Orchard stole a bottle of rum. She and Orchard arrived at the Cessnock Hotel at about 8.40- 9.00pm. She had not consumed any alcohol before she left home. 46. During the night, she had three or four cans of Smirnoff Double Black. She bought Orchard two drinks and saw her with other drinks throughout the night. She did not open the bottle of vodka which was in her handbag. She said at first that Orchard had drunk from her bottle of rum at the hotel but later, in her evidence-in-chief, she was unsure of this. O'Neil saw the deceased with his friends throughout the night and bought him a can of Coke. Orchard told her about the problems she was having with the applicant and that she had not seen him for five days. Orchard talked about him all night and O'Neil saw her texting him. 47. O'Neil and Orchard were asked to leave by security because Orchard was "mouthing off" all night. Orchard was speaking loudly saying that she was "going to turn the pub upside down". O'Neil said Orchard was "off her head" and on ice. She and Orchard left through the back entrance at about 2.20am, just before closing time. She and Orchard went to the nearby park and sat at the table nearest to Wollombi Road. O'Neil said that Orchard was cranky and rang the applicant five times but she could not recall what Orchard said. Orchard was drinking from the bottle of rum that was in her handbag. She was rowdy and "full on". 48. After about five to ten minutes, the applicant arrived and tried to settle Orchard down. At about that time, O'Neil saw a group of people, including the deceased, come out of the hotel which had just closed. Orchard began "mouthing off" at them. O'Neil walked towards the group with the intention of walking home with them. 49. Orchard and the applicant walked closely behind the group. Connor Young was "mouthing" at Orchard and called her a "dog". The applicant and Young began to fight in the middle of the swimming pool car park. They were "punching on". O'Neil thought that Young threw the first punch. The applicant removed his shirt. Young left his shirt on. O'Neil stood away from it, watching with the deceased and Brodie Jobson. 50. Around that time, O'Neil saw Scott Snelgrove, whom she referred to as "Scoot", walking around with a golf club without anything on the end. She had a conversation with him. She saw Orchard hit Jake Burrage with a bottle near where the fight began. The deceased then walked into the car park to break up the fight between the applicant and Young. He began to fist fight with the applicant near the corner of the two fences. They moved towards the low fence with the bushes. O'Neil was standing on the grass at the edge of the car park. 51. O'Neil saw the deceased run across Wollombi Road towards Cessnock Police Station. He was holding his left arm and stomach. O'Neil, Jobson and Snelgrove chased after him. They found him lying on the footpath near the radio station on the corner. O'Neil could see that he was bleeding through his shirt. She went to the police station with John Watson, a man who jumped out of a car to assist. Jobson remained with the deceased. The police tried to resuscitate him. Jobson called the deceased's mother. An ambulance arrived a few minutes later. O'Neil was not sure where the applicant and Orchard were when she left the car park, but she could still hear people yelling from that direction. 52. In cross-examination, O'Neil confirmed that the applicant was trying to calm Orchard down in the park and that he continued to do so while they were walking. O'Neil agreed that she saw a group of people in the car park while the fight was occurring between the applicant and Young. She was not able to say what they were doing or how close they were to the fight. O'Neil said that Orchard was near the fight. O'Neil saw Uaongo in the car park but did not see her doing anything. She did not see Young fall to the ground. She could not recall whether there was anything sharp at the end of the stick that Snelgrove was holding. Snelgrove did not enter the car park. 53. O'Neil conceded that in her statement to police on 5 April 2013 she said that the applicant and the deceased fell into the bushes near KFC. She agreed that they fell, but said that they did not fall to the ground. O'Neil agreed that when they came out of the bushes they continued punching each other. She was unsure whether there were other people around the applicant and the deceased when they were fighting, but did not think that there were. She admitted that she said to police "I think Riley kind of nearly had it all over Michael Scott" and that it appeared to her that the deceased was winning the fight. 54. Hayley Orchard gave evidence. She had been in a relationship with the applicant for about 12 months at the time of the incident. Orchard said that the applicant owned a red toolbox which contained one, two or three multi-tools. Before Thursday 4 April 2013 she had not seen the applicant for a number of days and her attempts to contact him had been unsuccessful. Their relationship was strained and she was upset and angry with him. 55. On the evening of 4 April 2013, she met with Melanie O'Neil and they went to the bottle shop where O'Neil bought two six-packs of Double Black Vodka and a bottle of vodka. Orchard stole a bottle of Bundaberg rum. She and O'Neil had each consumed three or four cans of Double Black Vodka, which contained double strength alcohol. They had arrived at the Cessnock Hotel between 7.30 and 8pm. Orchard drank eight or ten cans of Double Black Vodka while at the Cessnock Hotel. The bottles of vodka and rum remained in their handbags. Orchard continued to try to contact the applicant, without success. 56. Orchard and O'Neil were asked to leave the hotel by security staff as they were too intoxicated. Orchard admitted that she was very drunk and reacted badly. She started swearing and called the security guard a "dog". She and O'Neil sat in the park adjacent to the hotel, at the table closest to Wollombi Road. Orchard continued to call and message the applicant, as she wanted him to pick her up. 57. After about 20 – 30 minutes, Scott Snelgrove approached the table and talked to them. Orchard could not recall him holding anything. She saw the applicant approach from Vincent Street about 10 or 20 minutes after she had spoken to him on the phone. As he approached, Orchard saw a group of people walking through the park. 58. Orchard heard screaming and shouting. She saw the applicant had his shirt off and was in the middle of Wollombi Road fighting another man, Connor Young, who also had his shirt off. They were "punching on". The applicant fell over and two or three men were bashing him. He was lying on the ground but Orchard could not recall whether he was in the swimming pool car park or on the road. As she saw one of the men go to kick the applicant, she hit him in the face with the rum bottle from her handbag. She could not recall punching him first. The applicant said to her "let's go, let's go", jumped to his feet and ran up Wollombi Road. 59. Glenn Wilson, whom Orchard referred to as "Pork", was driving along Wollombi Road. He stopped his car near the KFC and the applicant jumped into the front passenger seat and Orchard jumped into the back right seat. The applicant began to verbally abuse her, so she asked Wilson to let her out near the bridge on Mount View Road. 60. Orchard said she did not see the applicant stab anyone in the car park. Orchard was shown a photo of a black handbag and its contents, which she agreed belonged to her. She conceded that a multi-tool was pictured amongst the contents of the handbag but she could not recall owning it or anything like it. 61. While the applicant was detained awaiting trial, another inmate, Josh Johnston, telephoned her on a number of occasions. At the time, Orchard was subject to a bail condition that she have no contact with the applicant. In one recorded call, dated 2 June 2013, Johnston told Orchard that the applicant said "you want to get down to the cop shop and pull the statements". Orchard replied that she had not given a written statement. Orchard confirmed in her evidence that she had been interviewed by police on 5 April 2013 but had not talked about the applicant nor provided a statement. 62. The applicant then came onto the phone and said "Russell and Carol have give us up fuckin' cold ... you're going to have to fuckin' pull Russell and Carol aside". Orchard gave evidence that she understood that the applicant wanted her to threaten or scare Russell Payne and Carole Miles to have them retract or change their statements (their evidence is addressed below). 63. Scott Snelgrove died before the trial but his police statement from 11 April 2013 was in evidence. In the early hours of Friday, 5 April 2013 he could not sleep so he went for a walk which took him past the front of the Cessnock Hotel. He was a carrying a cut off golf stick which had a yellow plastic dart with a metal tip on the end. He saw Hayley Orchard and Melanie O'Neil at the first table in the park near the hotel and spoke with them. They began to walk towards Wollombi Road when he saw the applicant coming from the opposite direction. The applicant and Orchard yelled at each other and the applicant told Orchard to be quiet. 64. As their group of four crossed Allandale Road, Snelgrove saw another group not far away. He said "one of the young guys was stirring Hayley up. He said three or four things to her that were just silly. I can't remember what he said". The applicant and Young started to push each other near the swimming pool car park and then lots of people became involved. Snelgrove heard lots of yelling. From the footpath where he was standing with O'Neil, Snelgrove saw the applicant and Young throw punches at each other in the far corner of the car park. They had their shirts off. Young punched the applicant over the fence and then one of the other men, the deceased, punched the applicant. 65. Snelgrove followed O'Neil, who began to walk towards Allandale Road. He heard her yell "Riley" and turned to see the deceased run across Wollombi Road towards the police station while holding one of his arms in the air with his other hand. Snelgrove saw the deceased lying face down on the gutter at the corner near Vincent Street. The deceased had a big open wound on his forearm and blood was coming out. Snelgrove called an ambulance. A few people were standing around, including Jobson. A police officer removed the spike from the golf stick that he was holding and returned the stick to Snelgrove. Snelgrove explained to the officer that he had found the stick. 66. Glenn Wilson gave evidence which was consistent with him recognising the applicant and Orchard when he was driving in Cessnock at about 2am. He said that others were running west after them and he gave them a lift in his car. The people in the pursuing group did not have shirts on. The applicant and Orchard were arguing in the car. Wilson formed the view that Orchard was intoxicated but that the applicant was not. Because of the arguing, Orchard demanded that Wilson stop the car and she got out. 67. Russell Payne gave evidence. He was a friend of the applicant. The applicant and Orchard had been staying with him for six months before the incident. In the course of giving his evidence, Payne said that he knew "Cycle from in and out of gaol a few times". This evidence was removed from the transcript that went to the jury. 68. Payne gave evidence that at some time on the night of 4 April 2013 or early on 5 April, the applicant woke him. Payne was pretty sure that the applicant was wearing black jeans and no shirt. The applicant passed Payne a knife and said "I stabbed someone". It was a silver knife with the blade out and the rest folded in. The blade was seven or eight centimetres in length. Payne had seen it before in a brown leather case that the applicant wore on his belt. It was a multi-tool knife. The applicant said to Payne "Can you wash this knife?". 69. The applicant told Payne to get rid of the knife, so Payne took it downstairs and put it in their red garbage bin in the common courtyard. When Payne returned upstairs, he told the applicant where he had put the knife. The applicant said it was too close and asked him to take it further away. Payne returned downstairs, removed the knife from the bin and walked to the showground in Stephen Street and threw the knife into the stormwater drain. It was just on dark, before sunrise. Later on 5 April 2013, when the police attended at the premises, Payne went to the stormwater drain with them and showed them where he had thrown the knife. 70. In cross-examination Payne said that the applicant did not say whom he had stabbed and he did not ask him. He confirmed that the applicant told him to get rid of the knife. 71. Carol Miles gave evidence. She was the partner of Russell Payne. She said that at around 2.30am on 5 April 2013 she answered the door and saw the applicant, who was wearing jeans but did not have a shirt on. 72. Jay Adler gave evidence. He was an acquaintance of the applicant. On the morning of Saturday, 6 April 2013 Adler received a call from the applicant. The applicant said that he did not do it and that it was Hayley. He also said "I don't know who done it" and "I didn't even have a knife". 73. Callum Orchard gave evidence. He was the brother of Hayley Orchard. At around 6.50am on 5 April 2013 he received a call from the applicant. The applicant said that he had been in a physical argument with someone. He saw blood on a man with reddish hair and it looked like he had been stabbed. The applicant said that he did not know what happened or who had stabbed the man, but believed it may have been Hayley. The applicant asked Callum Orchard to find out what was going on. Callum Orchard subsequently telephoned the applicant and argued with him about who had stabbed the deceased. The applicant told him that he did not do it, nor did he know who did. Callum Orchard agreed that in his police statement he said that the applicant "just told me that he and the bloke he was fighting fell over during the fight and that when he got up, that the other bloke had been stabbed". 74. In cross-examination, Callum Orchard conceded that he had not made notes of the conversations with the applicant and that the words used in the statement were his own. He confirmed that the police statement was made only a couple of hours after the conversations took place. 75. Claire Steadman was living in a flat in Cessnock with her boyfriend Christian Kibble in April 2013. In the early hours of 5 April 2013 the applicant attended their home. At his request, Steadman called Kayla Houston who came to their flat and subsequently left with the applicant. When Steadman woke the next morning, she found the applicant and Houston sitting in her garage. The applicant was very distressed and said that he was not going to go to gaol for something that he did not do. The applicant and Houston left in a car at about 8am. The applicant left his phone and two SIM cards with Steadman who took them to Cessnock Police Station later that morning, following a call from the police. 76. Christian Kibble gave evidence consistent with that of Claire Steadman. When the applicant arrived at their flat, he had a cut on his eye that was bleeding. The applicant told him that he was going to hand himself in to the police but that he was not going to "go down for something he did not do". 77. Ilana Asbury gave evidence. She knew both Kayla Houston and the applicant and was aware that the applicant was in a relationship with Houston and Orchard. At about 9am she was telephoned by Houston who asked that she pick her up and drive her to Claire Steadman's flat. Thereafter, Asbury drove Houston to a number of locations. On the afternoon of 5 April between approximately 1pm and 3pm, while they were driving, Asbury saw Houston pull a knife out of a shirt or jumper on her lap and take it out of a brown leather case. It was a flip-up type knife. At a location known as "The Devil's Kitchen Lookout" Houston pulled the knife out of the case again and buried it just past a memorial cross and placed a rock on top. 78. Later that day, they drove to Steadman's flat. The applicant was there. Asbury heard him say that he was thinking he would "go self-defence" and something about stabbing himself or getting stabbed. About half an hour later, Asbury, Houston and the applicant left Steadman's flat in Asbury's car. They drove around the back streets of Cessnock for nearly the whole night. The applicant said numerous times that it was not him but that it was Orchard who did the stabbing. He appeared to be stressed and he jumped out of the car twice while it was moving. 79. At about 4am the following morning,6 April, they dropped the applicant off at Steadman's flat. Asbury and Houston slept in the car for an hour or an hour and a half. When they woke, Asbury drove Houston to Steadman's flat. At about 9am, Asbury received a call from Houston who said that the applicant had gone to the police station. A couple of days later, Houston called and said "Do you remember that thing that got buried?" Houston then said "well forget about it, it's gone, the police have it". 80. In cross-examination, Asbury confirmed that she only saw the knife once when they were in the car. Asbury admitted that she was stressed at the time of these events. She conceded that when she was at Steadman's flat she did not hear all of what was said by the applicant and that she could not recall the exact words used he used. 81. Kayla Houston gave evidence. She had been in a relationship with the applicant since March or April 2013, while he was still involved with and living with Hayley Orchard. On the night of Thursday, 4 April 2013, the applicant visited her where she was living at Northcote Street, Aberdare. That occurred at 10pm or 10.30pm. They sat together for an hour or two. During that time, she saw six to ten messages come through on the applicant's phone with the name "Hayley" on the display. In the messages, Orchard was swearing and begging the applicant to pick her up. 82. At some stage during that period, the applicant emptied his pockets and put the items on the lounge. Included in those items was a silver Leatherman multi-tool in a brown case with a silver metal press stud. 83. The multi-tool had knives on one end and tools, such as pliers, on the other end. Houston had seen the multi-tool on one previous occasion. The applicant placed the multi-tool into his pocket. The applicant did not drink or take any other substances while he was at the house. Houston drank four or five cans of Jack Daniels and Coke. The applicant left on foot at about 1am and said that he was going home to bed. 84. Shortly after 6am on Friday, 5 April 2013, Houston received a call from Claire Steadman who said that the applicant was at her flat and that it was important that Houston came over. When she arrived, Houston saw that the applicant was angry and upset. He was pacing back and forth and crying. He said on numerous occasions that he did not do it and that it was Hayley. He said, at one stage when they were in the garage with Steadman, that Hayley had bottled someone, there had been a punch on, and that someone had been killed. 85. At 8.30am or 9am, Houston saw on the news and Facebook that there was a knife in the stormwater drain in Cessnock. The applicant told her that he had asked Payne to clean the knife and that Payne had then put the knife into the drain. The applicant asked Houston to take the knife out of the drain and dispose of it but she said no. Houston begged the applicant to hand himself in but he responded that he would not. He asked her for help and she said no each time. When she attempted to leave the flat, the applicant said "you're not fucking going anywhere. If I'm going down, you're coming with me". He pushed her to the ground. The applicant asked Houston to stab him so that he would not have to go to gaol. 86. At about 9.30am, someone in the flat received a phone call that the police were on their way. The applicant said that he would go out the back window and over the back fence. Houston left with him. They went to Michelle Crump's house, where they broke the gate and entered her shed. When the police arrived and called out, they did not respond. The applicant left over the back fence. Houston called Liana Asbury and they arranged to meet some hours later. Asbury drove Houston to Steadman's flat. The applicant was in the bedroom and Houston again told him that he should give himself up to the police. 87. Houston said that during this conversation, the applicant told her that he had stabbed "Riley" in the pool car park. He said that he had an argument with some young boys and they had a punch on. He did not say what happened or how it happened. She confirmed that it was during this second visit to Steadman's flat that the applicant also told her that he had asked Payne to clean the knife and make sure that it was not found. The applicant said that Payne put the knife in a bin at the units and when the applicant told him it was not good enough, Payne moved it to the stormwater drain. 88. After about an hour, Houston and Asbury left Steadman's flat. They met Ryan Hitchcock who had the applicant's dog. Houston suggested going to the stormwater drain near Cessnock Showground because she wanted to know if the knife had been found. Houston, Asbury and Hitchcock drove to the showground. Houston stood on the bridge over the stormwater drain for a couple of minutes looking for the knife, but she did not see anything. They then drove back to Steadman's flat. 89. At about 12.30pm Houston went with Asbury and Hitchcock to pick up Michelle Crump from her house and they drove back to the stormwater drain. Asbury remained in the car while the other three walked over to the drain. Houston then returned to the car. When Hitchcock and Crump came back from the drain they had a multi-tool in a brown Leatherman case. Hitchcock cleaned the tool with Houston's jumper. After dropping Crump off, they drove to Devil's Kitchen Lookout. It was about 2pm. Houston held the knife briefly and then Hitchcock put it under a rock before driving them back to Steadman's flat. 90. Soon after 6.30pm or 7pm, Houston saw the applicant, who was in the bedroom, at Steadman's house. Subsequently, Houston, Asbury, Hitchcock and the applicant left the flat in Asbury's car. They drove around for hours. The applicant was upset, distressed and crying. He jumped out of the moving car three or four times. At one stage while they were stopped, Houston heard Hitchcock and the applicant have a conversation outside the car. Hitchcock told the applicant to hand himself in and he replied "no, no, no it wasn't me, it wasn't me". When they stopped near the rubbish dump, the applicant asked Houston three or four times to stab him because he was innocent and he did not want to go to gaol. 91. While they were near the rubbish dump, Houston asked the applicant if he had stabbed the deceased. The applicant replied that he did not. Houston asked the applicant to swear on her son that he was telling the truth. The applicant replied that he could not. He said that he had stabbed "a boy" and he used the name "Riley" and said that it was in an upright position towards the heart. 92. In the early hours of 6 April 2013, they dropped the applicant off near Steadman's flat. Houston, Hitchcock and Asbury drove to Shannon Street and slept in the car for three or four hours. At about 6am, Asbury and Hitchcock drove off and Houston walked to Steadman's flat. The applicant was in the garage. He was upset and crying. She told him to hand himself in. Houston heard the applicant make a call to Jay Adler to ask for a lift to Cessnock Police Station. About half an hour later, Adler came and drove them to the police station. 93. A couple of days later, Houston and Hitchcock returned to Devil's Kitchen Lookout to retrieve the knife. Houston took it to Crump's house and put it in a drawer in the back shed. A couple of weeks later, Houston overheard a conversation between the applicant and Crump. He told Crump to put the knife in bleach to disintegrate the evidence. Houston also heard him tell Crump to go whale watching or scuba diving, and Houston understood that to mean that the knife should be dumped in water. A day or two after that conversation, Houston saw Crump put the knife into a bucket of bleach and wrap it in grey masking tape. About a week later, during a police search of the premises, Houston saw Crump throw the knife over the back fence and then afterwards return it to the drawer. A few days after that, Houston and Crump buried the knife in the backyard near a chicken coop. Houston, who was wearing gloves, undid the masking tape before it was buried. Houston said that was the last time she saw the knife and she did not know what happened to it afterwards. 94. Houston admitted that on the day that she was giving her evidence-in-chief, she received a letter from the applicant who was in the holding cells of the court (Exhibit W). In the letter the applicant asked Houston to give evidence in a particular way so that he could "beat the trial". Houston also wrote a letter to him but it was intercepted before she passed it to him (Exhibit X). Houston admitted that during her evidence-in-chief she told deliberate lies in an attempt to assist the applicant as requested in the letter. After lunch, when she knew the notes had been discovered, Houston changed parts of her evidence. She admitted that she was able to recall the conversations where the applicant told her that he had stabbed the deceased and the second visit to the stormwater drain. Gaol calls 1. A selection of telephone calls that were recorded while the applicant was in custody awaiting trial became Exhibit V. Houston was questioned in relation to the calls in which she was a participant. 2. In call 1, which was on 22 April 2013, Houston asked "Who are the crown's besides those two people?" Houston explained that she was asking who the Crown witnesses were in addition to Payne and Miles. She understood the applicant to be referring to Payne, Miles and O'Neil as Crown witnesses when he said "They're the three main". 3. Houston explained that the conversation in call 2, on 22 April 2013, was about Peter Cleaves, a solicitor from Cessnock, and how she could obtain the written witness statements from him. The applicant and Houston also discussed the witnesses in the trial. The applicant said "Alls I know is there's fifteen police witnesses and twelve civilian witnesses". Houston asked if Orchard was a witness: "What about Hayley, is she one?" 4. In call 3, on 23 April 2013 at 9.02am, Michelle Crump spoke to the applicant after Houston. The applicant said "If that queer cunt had some balls about her she would have stood up and said it was her". Houston understood that the applicant and Crump were discussing Orchard. 5. During call 3A, at 11.19am on the same day as call 3, the applicant said "Tell Tom, say Michael said you've got to fix the loose pieces up". Houston explained that Tom was friendly with the applicant's son and she understood the applicant to be asking him to "staunch" Payne and Miles. Houston confirmed that "staunch" meant to intimidate. 6. Houston said that the conversation in call 4, on 26 April 2013 at 9.04am, was about Nathan Fogg, a friend of the applicant. Houston was concerned Fogg would side with Orchard instead of the applicant. Houston said "that um, boy came into Chelle's house" and later in the call "they've got nothing to say". She explained that she was referring to Jake Burrage visiting Crump about four or five weeks after the applicant was arrested. Houston was saying that Burrage would not give damaging evidence. 7. Call 5 was at 1.33pm on the same day as the previous call. During the call, Houston said "They got nothing to say, nothing at all". Houston was explaining to the applicant that Burrage and Young had not made statements in the matter. This was in accordance with what Crump had told Houston after Burrage's visit. In this call, the applicant also raised self-defence: "Applicant: ...because I was being attacked the sheila had me pinned against the fence and fuckin' two of them attacking me. Houston: Yeah. Applicant: Well, what fuckin' more do you want, what more, what, what other case do you need for a fuckin' self-defence?" Houston was uncertain, but she thought the applicant may have used the term "self-defence" for the first time at Steadman's flat on Friday, 5 April 2013 when they discussed the stabbing . 1. During call 6 on 27 April 2013, Crump came onto the phone and said that Burrage "didn't give a statement, he wouldn't give one". Houston knew at the time that Burrage had made a statement. Later in the call, the applicant said to Crump "Ask Kayla about the messages she was sending". Houston explained that this was a reference to the messages that she saw Orchard send to the applicant on Thursday, 4 April 2013. Houston explained again that the term "staunch", used in this call, meant to intimidate or scare someone. 2. Houston explained that call 7, on 29 April 2013, was about the multi-tool that was used in the incident. The tool was referred to as "the thing you know" and "that bad thing". Houston asked the applicant "Where's a smart place" and he replied "in the river". The applicant had previously suggested disposing of the knife in water when Houston visited him in custody. Crump also talked to the applicant and they discussed whale watching. Houston said this was another reference to disposing of the knife in water. 3. During call 8, later on 29 April 2013, the applicant said "Tell Michelle she's definitely got to do Russell and Carol". Houston understood that the applicant wanted Crump "either to go staunch them or give them a hotshot". Houston explained that "staunch" meant to intimidate or scare, and a hotshot was "the use of minor bag drugs. Ice or something, put something in it" with the expectation that the person would get sick or die as a result of taking the drugs. 4. In call 9, which was also later on 29 April 2013, the applicant asked "Did you do that thing, the others yet?" Houston understood that the applicant was referring to her sending a message from a payphone to her own phone pretending to be Orchard threatening her. This plan had been discussed during an earlier gaol visit. The applicant also said "Tell Michelle the other two, right". Houston said he was referring to Payne and Miles. 5. Houston explained that at the time of call 10, on 2 May 2013, Melanie O'Neil and Ryan Hitchcock were in a relationship and were living together in Hunter Avenue. The applicant's friend Drew and the applicant discussed O'Neil and Hitchcock. 6. In call 11, on 3 May 2013, Houston said "They're looking after them two". She clarified in her evidence that this was a reference to Nathan Fogg looking after Payne and Miles. The applicant said "They were under the influence of amphetamines ... and ice at the time they made their statement ... and they lied". Houston said that the applicant wanted Nathan Fogg to "staunch" Payne and Miles. He also wanted Houston to convince Payne and Miles to change their police statements and have them say that they were under the influence of drugs at the time of their original statements. About a week after the conversation, Houston approached Payne and relayed the message. On a second occasion she gave Payne $20 for information, but he did not tell her anything. 7. During call 12, later that day, the applicant and Houston discussed whale watching and scuba diving. Houston confirmed that these were further references to disposing of the knife in water. 8. At the time of call 15, on 7 June 2013, Houston was about to meet Bradley Fogg, who was referred to as "Box". Houston said that her understanding was that Fogg was willing to assist the applicant at that time. The applicant said "Tell Brad about the two that lives in the flat will you?" and "Show Brad the full thing". Houston said he was referring to Payne and Miles, and wanted Houston to show Bradley Fogg the applicant's police facts sheet. 9. In call 16 on 8 June 2013, the applicant and Houston discussed letters between him and Nathan Fogg, referred to as "Pup", that they did not want to send through the mail. 10. The applicant said "I've got a thing wrote down for you that you've got to do" and later he said "I can't tell you over the phone". Houston admitted that she spoke to Fogg later that day about "staunching" Payne and Miles. 11. At the time of call 17, which was on 15 June 2013, Houston had been told by police that she could no longer visit the applicant because of earlier conversations about intimidating witnesses. Houston said to the applicant "cause they reckon we're going to try and take, me and you we're planning to take witnesses out or something, which is a load of fuckin' shit". She agreed in her evidence that she thought that they could work around the restriction and still communicate about action against the witnesses. 12. Houston explained that call 18, on 16 June 2013, occurred prior to her going to give Nathan Fogg the court brief she had obtained from the applicant's solicitor. 13. Call 20, on 25 October 2013, involved the applicant asking Houston to make a statement to the effect that she had sex with him before he left her house on the night of the incident. He wanted her to give evidence that there was no knife in his pockets at that time. The applicant said "The only one thing they don't know is what um, what you didn't tell 'em, that part about what happened before I left home". Police investigation 1. Constable Megan McNamara was on duty at the Cessnock Police Station at around 2.45am on Friday. 5 April 2013. She was told that someone had collapsed nearby. She ran to the corner of Maitland Road and Vincent Street where she saw the deceased lying face down on the footpath. She observed a large intramuscular cut to his left hand side of the ribcage. He was unresponsive and there was no pulse. 2. Senior Constable Matthew Nicholson gave evidence. He drove towards the corner of Maitland Road and Vincent Street in response to a police radio call. He and his partner drove around the immediate area speaking to witnesses and looking for the applicant. He observed that Connor Young was intoxicated, was not wearing a shirt and had a number of scratches on his chest and back. 3. Detective Senior Constable Adam Waite was the officer in charge. He obtained a statement from Dr Palipana, dated 6 August 2013, which was read into evidence. Dr Palipana opined that "based wholly or substantially on the above knowledge, I am of the opinion that Riley Dehn died as a result of the 1.5cm likely stab wound to his chest". 4. At 7.45am on Saturday 6 April 2013, Jay Adler arrived at the Cessnock Police Station and had a conversation with Detective Waite about the applicant. The applicant telephoned and Detective Waite arranged for him to attend the station at 9am. Just after 9am a car driven by Adler pulled in. The applicant, Kayla Houston and a fourth person were in the car. Detective Waite arrested the applicant. Arrangements were made with Claire Steadman for the applicant's mobile telephone to be brought to the police station. The applicant participated in an electronically recorded interview (Exhibit AD). The applicant's interview 1. Upon his arrival at the police station, the applicant participated in an electronically recorded interview with police. The applicant said that at about 10pm on Thursday 4 April 2013, he went to Kayla Houston's house in Aberdare. He received a number of text messages from Orchard, who asked him to go to the Cessnock Hotel. Orchard said that she had been kicked out of the hotel and that someone had called him "a weak cunt". The applicant said that he and Orchard had split up on Wednesday, 3 April. At around 2.30am he met up with Orchard at Apex Park near the Cessnock Hotel and tried to calm her down as they walked towards home. 2. He saw a group of people walking across the footbridge towards the swimming pool. Orchard punched one of the men, who she said had her kicked out of the hotel. "A big tall skinny fella'" with his shirt off, Connor Young, threw punches at the applicant. The applicant removed his black shirt in the car park, and he thought Orchard may have picked it up when they left. The applicant agreed that he may also have been wearing a Cowboys' hat at the time. The applicant said that Young fell to the ground twice in the car park. He agreed that he may have knocked him to the ground. He agreed he may have shaped up to kick Young while he was on the ground. Leina Uaongo pushed him against the fence and said that she would not let him get hurt. He could not recall attempting to bite her. 3. Another young man, the deceased, king hit the applicant four or five times. The applicant pushed under Uaongo's arms and wrestled with the deceased. They fell over a small fence. The applicant walked off and the deceased also walked away. As a result of the fight, the applicant had a cut on top of his right eye, a swollen left cheek and a cut to his lower left palm. 4. The applicant saw his friend, Glenn Wilson, drive past and jumped into the front left side of his car. Orchard jumped into the back left side. He and Orchard began arguing in the car so she jumped out and Wilson drove him to his home. Orchard arrived home soon afterwards and they both went to bed. The applicant saw a message on Orchard's phone about the deceased as a result of which he woke Orchard and told her. The applicant admitted that he later left the flat and avoided police until Saturday, 6 April 2013. 5. The applicant said that when he was king hit by the deceased: * The others in the group were about a metre away and it looked like they were coming in to break up the fight. * The others in the group were not aggressive or saying anything. * Uaongo was not a threat and was trying to stop the fight. * Young was on the ground. 1. In relation to the incident, the applicant denied: * Drinking alcohol or taking drugs beforehand. * Carrying a metal stick. * Having a knife, weapon or Leatherman in his possession. He admitted that there may have been a Leatherman in his toolbox. * Producing a Leatherman tool during the fight. * Knowing the deceased. * Seeing how the deceased was hurt. * Stabbing the deceased. * Asking Payne to clean and get rid of a Leatherman and telling him he had stabbed someone. 1. Detective Waite gave evidence that a number of knives were examined during the investigation. A Kincrome multi-tool was taken from the handbag of Orchard. A Kincrome folding knife was located in a bowl on top of the fridge at the Steadman flat during a search of those premises on Friday, 5 April 2013. Another knife was located by police during a search of the stormwater drain on Friday, 5 April 2013. A multi-tool was handed over to police by Jason King on 9 April 2013. He said that it came from a locked toolbox that he bought from Payne on 8 April 2013. Each of these four knives had been excluded as the knife that was used to stab the deceased. 2. Police conducted searches of Michelle Crump's house on 21 May and 7 November 2013. On the second occasion, police conducted a dig at the premises following information provided by Houston about the location of the knife used in the incident. Police were unable to locate the knife at Crump's house or elsewhere. 3. The balance of the recorded gaol calls were played during the evidence of Detective Waite. Call 13 involved a call between the applicant and his son Hayden Rigby-Scott on 4 May 2013: "Applicant: ...hey, you know that Russell and that? Rigby-Scott: Yeah Applicant: Fuckin' I heard Nathan's lookin' after 'em. … Applicant: You'd better tell Nathan they're the cunts who've got the statement in on me. … Applicant: Just have a word to Jase. Rigby-Scott: Yeah. Applicant: Tell Jase who it is, Jase'll go fix it." 1. Call 14 was a conversation was between the applicant and an unidentified female on 6 May 2013. They discussed Houston and Orchard. The applicant said about Orchard "It's her problem why I'm here 'cause I went down to pick up the drunk fuckin' idiot and she smashed a cunt's head with a bottle". 2. Call 19, on 19 October 2013, comprised a conversation between the applicant and a woman whom Detective Waite believed to be a flatmate of Houston, Shirelle Ling: "Ling: I haven't heard from Kayla really, she doesn't text me or anything any more since our night out. Applicant: Yeah. Yeah. Hey, you've got to get onto her, right, 'cause she, because she went through me pockets before I left her house, right. Ling: Mmm. Applicant: She knows what was in me pockets. You've got to keep onto her by saying, listen, ring the solicitor and tell the solicitor what went on. Ling: Yeah. Applicant: You know what I mean? Because she went through me, she went through me pockets lookin' for money and ice, and I had, I had 'em both in my pocket and I said, "Yeah, it's in, they're in me pocket". Her and me mate went through them so don't know. All right. I love you." 1. During call 21, on 1 November 2013, the applicant and his sister, Kelly Sneddon, discussed Houston: "Applicant: Well, fuck, I'm trying to get her to go down and make this other fuckin' statement what she knows but do you think she'll do it? Sneddon: Well, she reckons, she told me she knows shit, she doesn't know anything. Applicant: No. Why don't you ring her and ask her. Say did you, did you and Dean go through Michael's pockets before he left your house? Sneddon: … Applicant: Hey, her and Deany know, right, because they went through me pocket lookin' for fuckin' ice and money, right and I said, "It's in me pocket there". She knows what was in me fuckin' pockets before I left home, before I left her." 1. In cross-examination, Detective Waite agreed that the photos of the applicant showed that the applicant had a tattoo across the chest but no tattoos on his arms or his back. 2. Senior Constable Thomas Haydon conducted a crime scene examination at 5.20am on 5 April. He took a number of photographs. He placed a number of markers at the scene to identify physical evidence. A Trimble plan was prepared to show the scene and markers. 3. Senior Constable Haydon confirmed that no blood staining was found within the boundary of the car park. He said that the closest indicator of blood was on the footpath near the grass area at the western side of the car park near marker A, near marker 15 to the west and marker H to the east. He confirmed that the two light poles on the Trimble plan were the only ones in the vicinity and that there was limited ambient light from them. 4. Zane Kerr was the Senior Forensic Biologist at FASS (Forensic Analytical Science Service). He gave expert evidence as to the presence of DNA. He found that there was a match between the deceased's DNA profile and the blood droplets which were located as follows: * Northern footpath of the eastbound lanes of Wollombi Road. * Intersection of Wollombi Road and Allandale Road. * Southern footpath of Maitland Road. * Intersection of Maitland Road and Vincent Street. 1. Brian Beer, a forensic pathologist, gave evidence about the autopsy which he performed on the deceased. There was a fatal single stab wound to the central chest at the bottom of the sternum. The wound passed through the heart and caused significant bleeding in and around the heart, and the cavity surrounding the left lung. There was also a small superficial incised wound in the left chest. The wound had a length of 60 millimetres and a width of 25 millimetres at its widest. This wound had no link to the cause of death. 2. In addition there were two major wounds to the left forearm. The first was a combination stab and incised wound midway between the elbow and wrist. He explained that a stab wound is a wound that is deeper than it is wide whereas an incised wound is longer than it is deep. Dr Beer interpreted this combination wound as one that started as a stab and had come out as an incised wound. The total length of the combination wound was 45 millimetres. Dr Beer explained that the second major wound was a through and through wound on the back of the forearm. He said that a through and through wound occurs when the knife goes straight through the skin and out the other side. Dr Beer said that the wounds to the forearm were classic defence type wounds. There were also minor abrasions around the right side of the head, near the eyebrow and below the eye socket, as well as on the left leg. 3. Dr Beer opined that the cause of death was a combination of two factors. The first factor was blood loss from the stab wound that penetrated the heart in two locations, once going in and once going out. For a person who was young and fit, as the deceased was, it was possible to survive a significant period of blood loss over considerable distances before death. In the deceased there was a period of gradual but reasonably rapid blood loss. The second factor that caused death was the critical level of blood that accumulated around the heart, as a consequence of which the heart could not pump any more. 4. In Dr Beer's opinion the fatal stab wound involved a small flick knife or pen knife, due to the shape and size of the entry wound, and the length and the depth of the wound. The estimated depth of the wound from the skin to the back was between 70 and 80 millimetres. Dr Beer estimated that the knife was between 10 – 15 millimetres wide and a minimum of 70 – 90 millimetres long. The wound was caused by a thrusting stabbing movement directly forward from the hip or a more rounded up arm gesture out to the side. The angle of the knife was pretty much direct, with a slightly down, and slightly right to left angle. A wound through skin requires a small or moderate amount of force depending on the tip of the implement. In this case, the fatal stab wound to the deceased had passed through bone, the sternum, which would have required a significant degree of force. 5. In cross-examination, Dr Beer agreed that the stab wound to the chest could have been caused by the deceased's body moving forward and the knife being held still but this scenario had a much lower possibility than a direct forward motion with the knife. 6. The applicant did not give evidence. Initially his case was that he was not involved in the stabbing of the deceased. After he was re-arraigned on 30 March 2015, his case was that he had stabbed the deceased but had acted in self defence. His case was that he acted from a reasonable belief that he had to act in the way he did to defend himself, although acknowledging that it was not a reasonable response to the situation as he perceived it to be. Conduct of trial 1. The trial commenced on 10 March 2015 and proceeded before Justice Wilson and a jury pursuant to a plea of not guilty by the applicant. On 19 March 2015 the applicant applied to discharge the jury on the basis that bad character evidence had been raised by the witness, Mr Payne, during examination in chief when he stated that he had known the applicant "from in and out of gaol a few times". Her Honour refused the application. The evidence was removed from the jury transcript and a direction was given later in the summing up. 2. On Thursday, 26 March after the trial had proceeded for 11 days, defence counsel was granted leave to withdraw due to an "insuperable ethical conflict". On the same day, new defence counsel, Mr Wayne Flynn, appeared on behalf of the applicant. An application was made to discharge the jury on 26 March on the basis that the applicant would be prejudiced by having new counsel appear at such a late stage in the trial. Her Honour dismissed the application. The trial was adjourned to 30 March 2015 to enable new counsel to familiarise himself with the evidence. 3. On 30 March 2015, when the trial resumed, a further application was made to discharge the jury on the basis that new defence counsel did not observe the witnesses who had previously given evidence and could therefore not make any submissions to the jury in terms of the credit, presentation and demeanour of those witnesses. Her Honour again dismissed that application. 4. Following the dismissal of that application, the applicant was re-arraigned before the jury and pleaded "Not guilty to murder but guilty to manslaughter" based on self-defence. The plea was not accepted by the Crown in discharge of the indictment and the trial continued. 5. On 2 April 2015 a fourth application was made to discharge the jury. The application was made on the basis that evidence of 21 different phone calls revealed the applicant's possession of the drug "ice". It was submitted that the cumulative effect of this evidence, together with that of Mr Payne, and the evidence of alleged attempts to intimidate Crown witnesses, gave rise to unfair and incurable prejudice. Her Honour dismissed the application and gave a direction on the issue later in the summing up. 6. On 7 April the applicant made a fifth application to discharge the jury on the basis of Mr Flynn's mistaken use of the feminine pronoun to describe a male witness in his closing address, which was corrected by a juror calling out "He". The applicant submitted that the interjection by the juror highlighted the prejudice to the applicant in having new counsel. Her Honour was also asked to consider "whether all of the matters raised individually as grounding five discrete applications for the discharge of the jury could, cumulatively, have the effect of causing irredeemable prejudice to the accused". Her Honour dismissed the application to discharge the jury and the trial continued. 7. On Tuesday, 7 April 2015 at 3.03pm the jury retired to deliberate and on Friday, 10 April 2015 at 10.40am the jury returned a verdict of guilty for the murder of the deceased. THE APPEAL Ground 1 – Her Honour erred in failing to discharge the jury following the cumulative effect of both the admission of evidence going to the appellant's bad character and the withdrawal and replacement of defence counsel constituting a miscarriage of justice. 1. Rather than examine each application for discharge of the jury, it is preferable to have regard to the applicant's fifth and final application which took into account all previous applications. If her Honour's refusal to grant a discharge as a result of this application involved a miscarriage of justice, the ground of appeal is made out. 2. The submissions by counsel at trial raised two issues. The first was the cumulative effect on the jury of the evidence of the applicant's bad character and the second was the forensic disadvantage brought about by the late replacement of counsel in the trial. 3. In relation to the first issue, the matters specifically put to her Honour were: * The evidence of the applicant having been in gaol on prior occasions raised bad character. * The jury would have heard the evidence and might have sought details of the evidence at a later point in time. * The evidence could not be dealt with by a direction and if a direction were attempted, it would only serve to highlight the evidence. * The cumulative effect of evidence of the applicant's previous occasions in gaol, evidence of his involvement with illicit drugs and alleged attempts to intimidate Crown witnesses created unfair and incurable prejudice. * The transcripts of the telephone conversations containing evidence of the applicant's involvement with illicit drugs had been in the jury room for a considerable period of time and the effect of that evidence was worsened when the evidence of alleged witness intimidation, on the part of the applicant, was adduced by the prosecution. * The evidence was so prejudicial that it could not be cured by a direction and any direction would only emphasise that prejudicial effect. 1. In relation to the second issue, counsel submitted that appearing on the eleventh day of trial was unfair to the applicant having regard to the amount of material which had already been placed before the jury and the particular way in which previous counsel had conducted the trial. * New counsel was not in a position to know how previous witnesses gave their evidence. * He had not been able to observe the demeanour and presentation of witnesses. * He was unable to adequately address the jury in a way that would properly represent the applicant's interest. * This created an "insurmountable obstacle to the accused receiving a fair trial" (T.877.36). * The interruption by a juror calling out in the course of the defence closing address to correct counsel, who had used the feminine pronoun to refer to a male witness, only highlighted the forensic prejudice to the applicant inherent in the late replacement of counsel in this trial. 1. Although her Honour delivered a separate judgment in relation to each application to discharge the jury, her reasons for rejecting the fifth and final application encapsulate all of the previous reasons and conveniently summarise her Honour's approach (R v Scott (No 5) [2015] NSWSC 462). Her Honour's reasons are also particularly useful in that they summarise the factual background to the applications for discharge. 2. Her Honour noted (at [6] – [17]) that the evidence from Mr Payne that he knew the applicant "from in and out of gaol a few times" (T.531.40) was given on the seventh day of trial when all of the witnesses who had been present when the stabbing occurred (24 in number) had completed their evidence. The impugned evidence was given as an unresponsive answer to a question from the Crown by a witness who was particularly difficult to hear as he was softly spoken and had a "most idiosyncratic manner of speaking". The effect of the evidence had to be assessed against the overall context of the trial where the charge against the applicant arose from a fist fight between two individuals on a public street in the very early hours of the morning. 3. Her Honour specifically observed: "10 … The evidence of the conduct of many of the witnesses could readily have given rise to opinions adverse to those individuals in terms of their presumed and actual willingness to comply with the criminal law. 11 Other witnesses closely associated with the accused gave evidence of casual acts of criminality, including larceny and drug use. It must have been clear to the jury that this was the social milieu in which the accused moved and in which the events took place. He was to be judged against that background." 1. Her Honour concluded that while the reference to the accused having been in gaol did have the capacity to cause prejudice to an accused person, in the circumstances of this case she thought that a direction could readily be crafted to address that prospect. Her Honour also directed that the evidence be removed from the transcript to be given to the jury and noted that the jury were already aware that the applicant had been in custody since June 2013 as a result of this charge. Her Honour proceeded on the basis that the jury would follow the directions given by her in due course. 2. Her Honour next set out the background to the evidence of Ms Houston. It was necessary for a warrant to be issued before she attended court and she was remanded in custody until such time as she might be excused from further attendance at the trial. Her Honour observed that despite the possibility of further criminal proceedings, Ms Houston had failed to give complete and truthful evidence when called by the Crown. That situation changed in the following circumstances: "23 Over the luncheon adjournment, information came to the attention of staff of the Department of Corrective Services that could have explained Ms Houston's memory loss. Discovered in the possession of the witness were two handwritten letters, one evidently from the accused to Ms Houston, and one that appeared to be her undelivered reply. The letters were seized and made available to the parties." 1. It was common ground that the applicant had passed his letter to Ms Houston while in the holding cells at Darlinghurst. Her Honour provided further background as follows: "25 Both letters were tendered in evidence in the trial (exhibits W and X). Whilst Ms Houston's letter was principally an expression of love and support for the accused, the accused's letter urged Ms Houston to give the "right" evidence, to ensure that the accused "beat the trial" so that the accused and Ms Houston could enjoy a future together. 26 After the luncheon adjournment, and plainly being aware that the authorities had the two letters, Ms Houston's memory improved and her evidence became more complete. She continued in evidence that afternoon, and into the following day. She gave considerable evidence of what might be regarded as attempts by the accused to interfere with the trial process. Ms Houston said that the accused had asked her to "staunch", or intimidate, three Crown witnesses (Russell Payne, Carol Myles, and Melanie O'Neill) …" 1. It was after Ms Houston had completed her evidence in chief that counsel then appearing for the applicant sought leave to withdraw on the following day as a result of "insuperable ethical conflicts". It was on that day (26 March 2015) that Mr Flynn of counsel announced his appearance for the applicant. When the trial resumed on 30 March 2015, Mr Flynn did not cross-examine Ms Houston on her evidence. 2. The final part of this aspect of the first issue on the application to discharge was described by her Honour as follows: "52 The application was precipitated by some evidence that was before the jury as part of Exhibit V, a series of recordings of telephone calls from the accused to other persons after he had been charged by the police, together with transcripts of each call as an aide memoire to the exhibit. 53 Exhibit V was tendered by the Crown on 24 March 2015, without objection from the accused, then represented by Mr Cavanagh. … 55 Exhibit V contained recordings of twenty one telephone calls made between 2 June 2013 and 1 November 2013 by the accused. Calls 19 and 21 both contained a reference to "ice". In call 19, the accused described the actions of Kayla Houston in inspecting the contents of his pockets on 4 April 2013 in these terms: "[…] she went through me pockets lookin' for money and ice, and I had, I had 'em both in my pocket"." 1. There were two or three other references to "ice" in other telephone calls. 2. Her Honour set out the application then made by Mr Flynn which is similar to the submission which was made before this Court: "58 The application for a discharge was made on the basis that this evidence, taken with the evidence of the accused having been in gaol (that grounded the first discharge application), had a cumulative effect that caused unfair and incurable prejudice. It was submitted that that prejudice could only be worsened by some other evidence placed before the jury on 24 March 2015 which dealt with an alleged attempt by the accused to have Crown witnesses intimidated such that each would withdraw their evidence. 59 At T779:01 – T779:25 Kayla Houston had deposed that the accused had asked her to "staunch" particular witnesses. She defined that term to mean to intimidate or scare a witness, including by giving the witness a "hotshot". She explained "hotshot" to mean a drug such as "ice" mixed with some other substance that was given to a person leading to illness or death. 60 This evidence was led by the Crown without objection from the accused. 61 Mr Flynn submitted that the evidence should not have been led, should have been objected to, and was unfairly prejudicial in isolation, and in combination with the other matters referred to." 1. In setting out her Honour's reasons for rejecting this aspect of the first issue on the discharge application, it is necessary to set out the Crown submissions which were accepted by her Honour and formed part of her Honour's reasons: "62 The Crown opposed the application, pointing out that the evidence was led without objection in circumstances where trial counsel had asked for, and been given, time on the first day of trial to consider the evidence of the gaol calls and take instructions. Having done so, objection was taken to one discrete part of one call, which related to the accused detailing discussions with his lawyers about the plea he might enter and whether the Crown might accept that he acted in self-defence, albeit excessive. The impugned evidence was not previously the subject of any disquiet. 63 The Crown also pointed to the wider context of the trial – that the evidence referred to events and circumstances that had clearly arisen in an environment other than one peopled by the most law abiding of citizens, and that would have been apparent to the jury. Many of those concerned in the events were clearly living a criminal lifestyle, where drugs were a regular and unremarkable part of life, and time in gaol was nothing out of the ordinary. 64 It was submitted that it was impossible to hide this from the jury, and it could be dealt with by direction. 65 Having considered the matter, I concluded that, whilst there was potential prejudice to the accused, it was not inevitable and could be addressed by an appropriate direction. 66 The Court is not privy to the reasoning behind counsel's decision not to object to the evidence of "ice" in the accused's pocket. The Crown submitted that the relevance of the evidence relating to the drug was as part of the false version that the accused was constructing for Kayla Houston to give as evidence to assist him. That interpretation is certainly open to the jury, and it may well have been why defence counsel did not object to the evidence. It could be concluded that the reference to Ms Houston searching the accused's pockets for drugs as well as money was intended to make the proposed false testimony more believable. 67 In any event, it is not always possible to comprehensively sanitise evidence which is placed before a jury, and there is no general requirement that an attempt be made to do so. Questions of prejudice must be determined on the facts and circumstances of the particular case, rather than by reference to any generally applied proposition that evidence of familiarity with prison, or with drugs, must lead to prejudice. 68 Here, it is quite likely that the jury would have had some idea that the accused was no stranger to a less than wholesome lifestyle. That feature of the case did not necessarily mean that the jury would be prejudiced against him, and incapable of deciding the case solely upon the evidence, applying the law to the facts as it finds those facts to be. 69 I considered that, if given a clear direction that the jurors should not allow themselves to be prejudiced against the accused by such matters, and that they should set considerations of drug use, prison experience and the like entirely aside, there was no reason to conclude that the jury would not do as directed. Indeed, the notion that juries will do as they are directed underpins our criminal law." 1. Her Honour dealt with the forensic disadvantage issue as follows: "37 Mr Flynn's task was a difficult, but by no means an impossible, one. Whilst accepting instructions to appear for an accused person in a part-heard trial places counsel in a difficult situation personally, that is not a disadvantage that necessarily flows to the accused. 38 Mr Flynn is a very experienced barrister, and the trial transcript was immediately made available to him, as was the brief of evidence. He could be and was given sufficient time to go through the transcript and witness statements and to obtain full instructions. This should have been sufficient to address any possibility of disadvantage to the accused as a consequence of the change of representation. 39 Whilst the interests of the accused were a significant consideration, so too were the community's interests in the expeditious determination of trial matters: R v Alexandroaia (1995) 81 A Crim R 286. At this advanced stage of the trial, all of the significant witnesses had given evidence and the jury had attended to that evidence over the eleven days of the trial. 40 In all of the circumstances I concluded that there was no real prejudice to the accused, and I refused the second application to discharge the jury: R v Scott (No 3) [2015] NSWSC 460. 41 A short adjournment (from Thursday 26 March 2015 to Monday 30 March 2015) to allow counsel to finalise instructions, followed. 42 On 30 March 2015, prior to any further evidence being taken, the accused made another application that the jury be discharged, that being the third application of that nature made by the accused. 43 Mr Flynn contended that, as he had not had the advantage of seeing the witnesses as each gave evidence, and of seeing the jury as the evidence was given, there was necessarily prejudice to the accused, in that his counsel would not be in a position to make assessments of the credit of particular witnesses, or of any response from jurors to individual witnesses. … 45 It is acknowledged that a transcript of evidence cannot recreate the demeanour of a witness, or reflect any apparent reaction to a witness from members of the jury, the latter being at least theoretically discernible by observation. It is also acknowledged that it is a difficult task for counsel who accepts instructions to act for an accused person in a part-heard jury trial. 46 However, I did not regard that situation as inevitably creating insurmountable prejudice to the accused such that his trial, then at the twelfth day of evidence, and having heard from thirty-three witnesses, should proceed no further. 47 The accused was present in Court when each witness gave evidence and, whilst his observations of witnesses or jurors could not be expected to be of the same nature as those made by a lawyer, the accused could discuss his observations and impressions of witnesses with counsel. Equally, there was no impediment to Mr Flynn discussing the case with counsel previously instructed, and gaining the benefit of counsel's contemporaneous observations of witnesses and the jury. To do so would not trespass on any issue of conflict, and that course was open to Mr Flynn, as he acknowledged. 48 I do not accept that it is impossible to gain a proper and sufficient understanding of the evidence and issues in a part-heard trial from a transcript to competently represent the interests of a party for the balance of the trial. Whilst a transcript is not the perfect medium through which to convey a witness' manner of speech, and nor can it reflect the intonation, emphasis, and delivery of the spoken word, it can and does adequately record the evidence in such a way that persons with legal training particularly, familiar with the procedure of a trial and with reading trial transcript, can gauge both the nature and flavour of a witness' evidence. 49 If that were not so, no appellate court could ever consider a ground of appeal against conviction that required an assessment to be made of the credibility and reliability of particular evidence. Plainly, that is not so. Appellate courts daily determine such questions and do so on the basis that, whilst the jury had the advantage of having seen and heard the evidence as it was given, the court is, nevertheless, able to determine not just the sufficiency of evidence, but also its quality: M v The Queen [1994] HCA 63; 181 CLR 48 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [13]; Mansaray v R [2015] NSWCCA 40 at [59] – [60]." 1. Her Honour then set out the factual background to the final aspect of this issue: "73 This application was based upon something that occurred during Mr Flynn's address on the afternoon of 2 April 2015. During his address, Mr Flynn made reference to the evidence given by a witness, Brodie Jobson. In referring to the witness, Mr Flynn, who had not seen Mr Jobson and knew his evidence only by transcript, referred to him using the feminine pronoun. At one point (T1096:11) Mr Flynn said, "Brodie Jobson, she was also at the car park." 74 A juror called from the witness box "He". The Crown Prosecutor, who had been invited by Mr Flynn to correct any errors he may have made in address of such nature said, almost simultaneously, "He". Mr Flynn corrected himself and continued. 75 The accused's submission was that the interjection from the juror highlighted the prejudice to the accused inherent in having new counsel. It was contended for the accused: "[…] I can just point out that it was an interruption by a juror indicating that I didn't even know the sex of the witness about whom I was addressing and that raises the issue as to whether the jury can properly accept that I was over the brief. Under those circumstances it reflects upon me and therefore on my abilities to properly represent the accused when continuing the trial. That's yet another reason when added to all of the other reasons that I have raised earlier, your Honour, but that is an example of the prejudice that flows to the accused when that happens." 76 The Crown opposed the application, made on the sixteenth day of the trial. The Crown submitted that the juror's interjection was nothing more than an indication of the careful attention given to the addresses by an engaged jury who knew the evidence; it was submitted that it could in no way reflect adversely on Mr Flynn, or have any prejudicial effect against the accused. 77 The Crown Prosecutor referred to another, similar, interjection, where he had mistakenly referred to a direction as west, when it was in fact east, and a juror had called out to correct him. Whilst that interjection on 31 March 2015 does not appear in the transcript (at T1003:04), probably because there was no microphone near the juror to record the comment, it was certainly made. As with the correction offered to Mr Flynn, I regarded it as having been advanced in a helpful way, by a juror who was clearly attending closely to the evidence, that being the very thing jurors are asked to do. I saw no implicit reprimand in it. 78 My own observation of the interjection during Mr Flynn's address was that it was made in a very good humoured way, and in the same spirit of helpfulness as that in which the Crown Prosecutor was corrected. The particular juror was smiling, as were a number of the other jurors. I interpreted the juror's act as an attempt to be helpful to counsel who, as all were aware, had not personally seen the witness. The interjection did not appear to embody some adverse opinion of Mr Flynn, his capacity to represent the accused, or of the accused himself. 79 In all of the circumstances, I see no reason to interpret the gesture as illustrative of some negative assessment of counsel that must itself have necessarily reflected adversely on the accused. 80 Even were that a possibility, the slight risk of prejudice to the accused attaching from a negative view of counsel is readily capable of being addressed by direction. The jury will be told – in common with every jury in every criminal trial – that its task is to act judicially, without partiality or prejudice, and without allowing sympathy or emotion to sway its judgment. The jury will be called upon to use its common sense, wisdom, and sense of justice." 1. Having set out her conclusions in relation to all of the applications, her Honour had regard to their cumulative effect. "82 The additional question is whether all of the matters raised individually as grounding the five discrete applications for the discharge of the jury could, cumulatively, have the effect of causing irredeemable prejudice to the accused, such that he could not receive a fair trial, were the trial to continue. 83 In support of his contention that there was such prejudice the accused did not identify any separate, or additional, prejudice to those earlier asserted to exist. 84 For the reasons already given, I do not consider that the change of counsel in fact caused any material prejudice to the accused, either because of the disadvantage connected with Mr Flynn not having personally observed witnesses, or arising from the case being conducted differently to the manner in which new counsel might have conducted it, or, due to any negative impression counsel may have made on the jury. These considerations might, theoretically, lead to prejudice, but did not in fact do so in circumstances where experienced and competent counsel came into the matter when it was part-heard. I do not consider this aspect of the matter to add to any additional danger of prejudice to the accused's right to a fair trial, either taken alone or in conjunction with other matters. There remains the evidence of Mr Russell having met the accused in prison, and that of drug use. 85 Could the evidence suggesting that the accused had prior experience of the use or, at least, possession, of illicit drugs, and of time in prison, have a prejudicial effect which, cumulatively, was greater than the sum of its parts? 86 Whilst there may be circumstances in which that could be so, I do not consider the circumstances applying here in fact give rise to such a heightened risk. The references to gaol and drug possession in the evidence were very much peripheral ones; there was no focus upon those aspects of the evidence by the parties and it is likely that the jury followed that lead. Even if the jury should be tempted to give that evidence some greater weight in combination than it deserved individually, that risk is capable of redress by appropriate direction. 87 In the context of the trial, where casual acts of criminality by a number of individuals figured in the evidence, the impugned evidence did no more, in my opinion, than to place the accused against the background of the environment in which he moved and in which the offence is alleged to have occurred. 88 Such prejudice as might arise can be readily dealt with by direction." 1. The applicant in written submissions on the appeal submitted the following: * Inadmissible material had been placed before the jury and in the circumstances, no jury could be expected to put it out of their mind. * The trial largely turned on the evidence of the witnesses on the night in question and without direct evidence as to when the fatal stab wound occurred, evidence that went to the applicant's bad character was "plainly serious" (Aslett v R [2009] NSWCCA 188 at [48]). * New defence counsel was at a forensic disadvantage in not having observed the witnesses give evidence and was disadvantaged in addressing the jury. * Her Honour's directions in relation to the discharge applications made on 19 March 2015 and 2 April 2015 went to the applicant's time in gaol and involvement with illegal drugs respectively. The directions were given in her Honour's summing up which had the effect of highlighting the evidence by bringing the jury's attention back to it and in such circumstances, no jury could be expected to put it out of their minds. * The cumulative effect of the five discrete discharge applications, incorporating both bad character evidence and a mid-trial change of counsel, created unfair prejudice that could not be cured by direction. * The bad character evidence tended to show that the applicant was the sort of person who might be involved in criminal violence. Any judicial direction addressing the bad character could only serve to emphasise the bad character evidence. * The law has long recognised the prejudicial effect of bad character evidence and the risk that such evidence will render a trial unfair because it invites the jury to engage in propensity reasoning (Walker v R [2014] VSCA 177 citing R v Knape (1965) VR 469). 1. The applicant submitted that the single issue in this murder trial was the genuineness of his belief that it was necessary to stab the deceased to defend himself. The effect of Ms Houston's evidence that he could have been asking for witnesses to be killed, gave rise to the real danger that the jury would be prejudiced against him, adopt impermissible tendency reasoning and give undue weight to the evidence of witness tampering. 2. The applicant submitted that all the bad character evidence ought to have been objected to and if that had occurred, it should have been rejected. The applicant submitted that the bad character evidence, particularly the evidence about the "hotshot" was of such an unfairly prejudicial nature that any conceivable forensic advantage from the decision not to object to that evidence was slight in comparison with the unfair prejudice resulting from the evidence. The applicant submitted that irrespective of the failure to object to the evidence, a miscarriage of justice had occurred (TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [28] (per Gaudron J, Gummow J at [101] and Hayne J at [102]). 3. The applicant submitted that tendency and coincidence evidence was only admitted when the evidence had significant probative value for that purpose and the probative value of the evidence substantially outweighed any prejudicial effect it might have on the accused. The applicant submitted that juries could not be expected to act in accordance with directions in relation to such bad character evidence where, as in this case, the evidence had limited or no probative value, i.e. any probative value could not outweigh the unfair prejudice arising from that evidence. 4. The applicant submitted that the narrow issues in dispute meant that there was a greater risk that the jury would be prejudiced against him, adopt impermissible tendency reasoning and give undue weight to the bad character evidence. The applicant submitted that the highly prejudicial evidence of Ms Houston would have been highlighted in the minds of the jury because of the admission of Exhibits W and X. No direction could be or was made to the jury about the "hotshot" evidence that would not unfairly prejudice the applicant again. 5. In oral submissions, these propositions were repeated as follows: 1. This was a single issue murder trial relating to the genuineness of the applicant's belief that it was necessary to stab the deceased to defend himself. Ms Houston's evidence and the suggestion that the applicant could have been asking for witnesses to be killed gave rise to a real danger that the jury would be insurmountably prejudiced against him. In the context of a murder trial confined to the issue of excessive self-defence, the possibility of killing witnesses was so egregiously prejudicial as to constitute a miscarriage of justice. 2. The applicant submitted that the bad character evidence, particularly the evidence about the "hotshot", was of such an unfairly prejudicial nature that any conceivable forensic advantage from a decision not to object to that evidence would have been slight. It was hard to imagine what the forensic advantage might be in comparison with the unfair prejudice resulting from the evidence. The applicant submitted that irrespective of the failure to object to the evidence, a miscarriage of justice had occurred and this Court should intervene. 3. The applicant submitted that it was no answer to these propositions that juries were regularly confronted with evidence of an accused's bad character such as when tendency and coincidence evidence is adduced. The applicant submitted that this was not a tendency and coincidence case and that evidence of that kind could only be adduced if it had significant probative value, a quality in which this evidence was deficient. 4. No direction could or was made to the jury about the "hotshot" evidence that would not unfairly prejudice the applicant again and despite the fourth discharge application, the "hotshot" evidence was not removed from the jury. 1. In those circumstances, the applicant submitted that a miscarriage of justice had occurred and a new trial should be ordered. Consideration Relevant legal principles 1. In Crofts v The Queen [1996] HCA 22; 186 CLR 427 the majority (Toohey, Gaudron, Gummow and Kirby JJ) said at 440 – 441: "It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?" 1. In Trieu v R [2012] NSWCCA 169 Rothman J (with whom McClellan CJ at CL and Johnson J agreed) said as follows: "26 When a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question for this Court is whether, in the circumstances of the case, there was a miscarriage of justice: s 6(1) Criminal Appeal Act 1912. 27 The issue on appeal is whether there was such a high degree of necessity for the discharge of the jury that the failure to order such a discharge has resulted in a mistrial: Crofts v The Queen [1996] HCA 22; 186 CLR 427 at 440. It is for the appellate court to determine whether a miscarriage of justice has occurred: Crofts v The Queen at 441; Samadi v R [2008] NSWCCA 330; 192 A Crim R 251 at 277-279 [133]-[138]. 28 However, much leeway must be allowed for the trial judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen at 440-441. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining whether there has been error in the exercise of discretion: El Hassan v R [2007] NSWCCA 148 at [15]. 1. In summary, the Court of Criminal Appeal will not interfere with the exercise of discretion to refuse a discharge unless it can be shown that the judge acted on a wrong principle or that there was a miscarriage of justice: R v Ball (1961) SR NSW 37 applied in R v Owen (unreported, NSWCCA, 7 July 1988); Maric v The Queen (1978) 52 ALJR 631 at [520] – [521]; Mikael v The Queen [2015] NSWCCA 294 at [42]-[43]). 2. The unresponsive evidence of Mr Payne, either on its own or in combination with the other "bad character" evidence, provided no basis for the discharge of the jury. Apart from the fact that many of the jury may not have heard what was said (for the reasons identified by her Honour), the jury already knew that the applicant had been in custody since his arrest in June 2013, i.e. a considerable time before the trial took place. It was also understood by both counsel at that time that the telephone intercepts (Exhibit V), which were later to be tendered without objection, made it clear that the applicant was familiar with gaol procedure. Finally, this is the very kind of evidence which could be dealt with by a clear direction by the trial judge which is what happened here. As has been often stated, a court can and must proceed on the basis that the jury will follow the directions given by the trial judge: The Queen v Glennon [1992] HCA 16; 173 CLR 592; Gilbert v The Queen [2000] HCA 15; 201 CLR 414 and R v Dudko [2002] NSWCCA 336; 132 A Crim R 371. 3. The applicant's submission that the "bad character" evidence in Exhibit V was irrelevant and should not have been admitted in a single issue murder trial where the issue was whether the Crown had successfully negatived self defence is misconceived. It fails to have regard to the fact that the trial did not become a single issue murder trial until 30 March 2015 when the applicant was re-arraigned and pleaded guilty to manslaughter by excessive self-defence. 4. Until that point in time, the cross-examination of the persons who were present when the stabbing occurred made it clear that the only element of murder which was conceded by the defence was that the deceased had died. In particular, the applicant was challenging the proposition that he had stabbed the deceased. Once that is understood, the basis for the admissibility of Exhibit V becomes clear. 5. With all except one of the elements of murder in dispute, the contents of Exhibit V, supplemented by the evidence of Ms Houston as to the "staunching" or intimidation of witnesses including, if necessary, the administration of a "hotshot", provided powerful evidence of a consciousness of guilt on the part of the applicant. In circumstances where there was some difficulty in proving that the applicant had stabbed the deceased, his efforts to interfere with witnesses to whom he apparently made admissions, considerably strengthened the Crown case on that issue. In those circumstances, even if objection had been taken by the defence to the admission of those parts of Exhibit V which related to "staunching" and the like, that evidence would have almost certainly been admitted despite its prejudicial quality. There was nothing unfair in its admission. In my opinion, had objection been raised, the probative value of that evidence would have outweighed the prejudicial effect and it would have been admitted. One can infer from the lack of objection, that counsel for the applicant had reached a similar conclusion. 6. Moreover, counsel for the applicant at the time that he consented to the admission of the material in Exhibit V was not to know that Exhibits W and X would come into existence and would be found on Ms Houston by Corrective Services personnel. Again, given the fact that all issues in relation to murder were still in play when Exhibits W and X were admitted, it is clear why her Honour admitted those documents and why their probative value was regarded as outweighing their prejudicial effect. 7. There was also a forensic advantage for the applicant (which he appreciated) in the contents of Exhibit V being before the jury. This was the evidence which he wished to be led that Ms Houston had gone through his pockets, had found the drug "ice" and money, but had not found a Leatherman or other knife. It may well have been that this admission against interest (i.e. that he was in possession of "ice") was intended to make the evidence that he did not have a Leatherman or other knife in his pocket, more believable. 8. It was only when the applicant indicated his willingness to plead guilty to manslaughter by way of excessive self-defence, on 30 March 2015, that the case became a single issue murder trial. Until that occurred, the "bad character" evidence was properly before the jury as a result of the way in which the applicant and his legal advisers had chosen to run the case. In those circumstances, there was no proper basis for a discharge of the jury and her Honour was entitled to exercise the discretion in the way in which she did to decline the application. 9. Even after the trial became a single issue murder trial, the impugned evidence in Exhibits V, W and X remained relevant and therefore admissible. The Crown contended that the evidence of the applicant seeking to have other persons interfere with witnesses, "staunch" and intimidate them, and otherwise persuade them to change their evidence or statements, was more consistent with a person acting from a consciousness of guilt for the crime of murder not manslaughter. That submission by the Crown was, of course, subject to the direction as to lies and the possibility of other explanations for the conduct to which her Honour properly referred in the summing up. Even so, the evidence remained relevant. 10. When considering whether a miscarriage of justice has occurred, it is also necessary to keep in mind the specific directions given by her Honour in her summing up. Her Honour said: "Secondly, if I can remind you of something else that I said to you when the calls from the gaols were being played. It is clear that they are calls from the gaol, they have the standard warning that comes on with all calls from inmates, warning that the call could be recorded, and it is clear it is coming from a prison environment. You must not because of that evidence draw any inference which is adverse to the accused because there is that evidence about him having been in gaol. That he was or may have been in gaol at any stage is completely irrelevant to the question of whether the Crown has proved beyond reasonable doubt that the accused murdered Mr Dehn. In the same vein, there is some evidence that might lead you to conclude that the accused associated with persons who were not necessarily law-abiding citizens. Hayley Orchard, for example, was or had been his girlfriend up until shortly before these events. She is someone who came before you and told you that she had been stealing that very night. She had stolen a bottle of rum I think she said it was from an alcohol outlet, a liquor shop on that evening. There is some evidence that suggests that the accused associated with people who used illegal drugs and indeed may have himself been familiar with illegal drugs. Whatever you might think of those things, whatever you might think of the accused's lifestyle and what you think to be his lifestyle, you must not allow those matters to prejudice you against him. He is not on trial for mixing with people you might think are unsavoury. He is not on trial even for say bad language. We heard in those calls some fairly unsavoury language. That should not prejudice you against Mr Scott. And of course you have heard the evidence that he has been held in prison. Set all of those things aside. The central issue here is has the Crown proven beyond reasonable doubt the accused's guilt for the offence of murder. Those things that I have referred to have no relevance whatsoever to that central issue." (SU 43.14 – 44.15) 1. Not only was this an accurate and appropriate direction but it involved a realistic appreciation of the nature and quality of the evidence. Much of the evidence given by the eye witnesses to the confrontation in the car park did not reflect well on them as particularly law abiding members of the public. Far from reminding the jury of the bad character of the applicant and his associates, it comprised sensible directions which could only assist the jury in their deliberations. 2. The totality of the material which is challenged as unfairly prejudicial was properly before the court. This is because at the time it was tendered every element of murder, except for the fact of the deceased's death, was in issue. When those issues were narrowed to self-defence on 30 March 2015 the evidence remained relevant although some of its force was lost because of the concession by the applicant that he had stabbed the deceased and brought about his death. The fact that the evidence was admissible at the time that it was tendered was a product of the way in which the applicant chose to run his case. In those circumstances, that change of emphasis in the trial by the applicant did not entitle him to a discharge of the jury. 3. That was the reasoning behind the Crown submission in the appeal that it was not always possible to completely sanitise evidence and that often by the application of other principles of admissibility "bad character" evidence can be properly before a jury. The illustration given by the Crown was tendency and coincidence evidence, often of a particularly heinous nature, in child sexual assault cases. Where such evidence has been properly admitted, it remains before the jury despite its undoubtedly prejudicial nature. That analogy is valid when applied to the facts of this case. The "bad character" evidence was properly admitted, even though it lost some of its force when the issues at trial were narrowed. That was why her Honour gave the warning to the jury in the summing up about not misusing that evidence. 4. As her Honour properly appreciated, references to drugs and gaol generally were inevitable in a trial such as this. There were always going to be references to people being in gaol, people using "ice" and behaving in a way which bordered on the illegal. This was in a context where most of the participants in the confrontation at the swimming pool were heavily intoxicated and had been drinking large quantities of alcohol over a number of hours. There was evidence that at least two of them (the deceased and Hayley Orchard) were also affected by drugs. 5. The focus of the applicant's submissions in the appeal was directed to the asserted prejudicial nature of the evidence. Little was said about the replacement of counsel in the course of the trial and the alleged forensic disadvantage which this brought about. In any event, as her Honour pointed out, it is by no means unusual for defence counsel to have to withdraw during a trial and for there to be a change in representation. These matters were, with respect, properly and comprehensively dealt with by her Honour, not only in the individual judgments but in the final judgment where her Honour considered the cumulative effect of all of the applications for a discharge of the jury. 6. I have concluded that her Honour dealt with the matters, the subject of the discharge applications, appropriately and properly in her judgments. The evidence before her Honour, including Exhibits V, W and X, was admissible, even if objected to at the time of tender, and was properly admitted in the trial. At the time those exhibits were tendered, they were relevant and probative of whether the applicant was the person who had murdered the deceased. They continued to be relevant even when the issues in the trial were narrowed. 7. In my independent assessment of the evidence before her Honour and her Honour's rulings, both as to its admissibility and on the discharge applications, I am satisfied that her Honour correctly exercised the discretion which she had. Furthermore, I am not persuaded that any miscarriage of justice has occurred, either in the admission of the evidence or in the refusal to grant a discharge of the jury. Ground of Appeal 1 has not been made out. Ground 2 – The verdict was unreasonable or cannot be supported by the evidence. 1. The applicant submitted that there was no direct evidence as to when the deceased was fatally stabbed by the applicant. He submitted that the only basis for the Crown contention that the stabbing must have occurred early in the altercation between the applicant and the deceased was the evidence of Ms Uaongo. The applicant submitted that if the evidence did not support that proposition and it was open to the jury to find that the stabbing occurred later in the altercation, the Crown had not negatived self defence beyond reasonable doubt. This was because it was clear that the applicant was not doing well later in the altercation and he may well have believed it was necessary to use the knife in order to defend himself. 2. In support of that proposition the applicant submitted that it was not Ms Uaongo's evidence that she saw the infliction of the fatal stab wound and in some respects her evidence was unreliable. The applicant noted that other witnesses to the fight between him and the deceased were heavily intoxicated and even more unreliable. In summary, the context of the altercation involved a large group of people, some of whom were fighting against the applicant in a dark and chaotic atmosphere. Therefore the applicant submitted that it was unreasonable for the jury to reject the defence of excessive self defence, given the state of the evidence. 3. The applicant submitted that there was a significant body of evidence to support the proposition that the stabbing occurred later in the altercation: * The evidence of the applicant walking backwards out of the car park after the incident, keeping his face towards the deceased's friends. * The evidence of Dr Beer that the fatal wound could have been caused by the deceased's body moving towards the knife held still by the applicant. * The evidence that the fight ended abruptly and that the deceased immediately headed in the direction of the police station, saying that he needed help. * The evidence of more than one stab wound was more consistent with self defence than an aggressive attack. * The absence of evidence of any bloodstains in the vicinity of where the fight apparently occurred. 1. The applicant submitted that even if the stabbing had occurred early in the altercation, this did not eliminate the possibility that the stabbing was done in self defence, albeit excessive. He submitted that at the time he was being restrained by Ms Uaongo, he was being kicked by Mr Connor Young and he was under imminent attack by the deceased. 2. The applicant relied upon the following aspects of the evidence of Ms Uaongo to establish that it was unreliable. * She confused the applicant with Mr Scott Snelgrove (who was the person carrying a stick) and maintained her incorrect identification under cross-examination. * She agreed under cross-examination that she had told police she presumed she had seen a knife whereas in court her evidence was that she saw the blade of the knife. * Had Ms Uaongo indeed seen a knife, one would have expected her to have shouted a warning to her friends which did not occur. * Under cross-examination Ms Uaongo agreed that she said in her police statement that the applicant and Connor Young had traded punches but in her evidence at trial, she said that the applicant had struck Mr Young. 1. The applicant submitted that the Crown's contention that his post-incident conduct indicated a consciousness of guilt of murder rather than manslaughter was not made out. The applicant submitted that this conduct was easily explained by panic and fear caused by the knowledge that he had killed someone. It could also be explained by him not understanding the intricacies of the law relating to partial defences to murder, such as excessive self defence. 2. The applicant submitted that the Crown's contention that he was the aggressor in the initial confrontation with Connor Young was not made out. The applicant referred to the evidence of Ms Charmaine Allen, Mr Aiden Bowen-Duff and Mr Jake Burrage to the effect that rather than the applicant, it was Connor Young who was aggressive and looking for a fight. 3. The applicant relied upon the evidence of Ms Charmaine Allen to the effect that the deceased hit him at a time when Ms Uaongo was holding him. The applicant submitted that on the basis of that evidence, he was entitled to defend himself and there was a reasonable basis for him believing that it was necessary for him to use his Leatherman knife in order to resist the further attacks by the deceased. 4. In summary, the applicant's submission was that there was only evidence of one action on his part which could involve use of the knife and that that action was more consistent with the infliction of the defence wounds on the deceased's arms, rather than a direct thrust of the kind said by Dr Beer to be necessary to pierce the sternum and inflict the fatal wound. In those circumstances, the applicant submitted that there was no evidence as to when that fatal wound was inflicted and that the evidence was equally consistent with it being inflicted late in the altercation, rather than at an early point in time. That being so, the applicant submitted that the jury could not have been satisfied beyond reasonable doubt that he did not believe that it was necessary for him to use the knife to defend himself against the deceased. Consideration 1. The relevant principles were recently conveniently set out by this Court (Leeming JA, Schmidt and Wilson JJ) in AL v Regina [2017] NSWCCA 34 as follows: "170 The task for an appellate court considering whether a verdict is unreasonable is to make an independent assessment of the sufficiency and quality of the whole of the evidence. The question is whether notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all of the circumstances to allow the verdict to stand: M v The Queen [1994] HCA 63; 181 CLR 487 at 492; SKA v The Queen [2011] HCA 13; 243 CLR 400. 171 In Libke v The Queen [2007] HCA 30; 230 CLR 559 Hayne J (with whom Gleeson CJ and Heydon J agreed) said at [113], "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard." 172 In answering that question the primacy of the jury must not be discounted; nor can it be overlooked that the jury had (in this case the very considerable) advantage over the appeal court of having seen the witnesses give evidence. 173 Recently, in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 the High Court said at [65]-[66], "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court 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"." 1. Contrary to the submissions of the applicant, on my perusal of the evidence there was ample circumstantial evidence available to support a finding by the jury beyond reasonable doubt that the applicant had murdered the deceased. Although it was part of the Crown case that the stabbing had occurred at an early point in the confrontation, I am not persuaded that this was an essential finding of fact upon which the conviction of the applicant for murder depended. It was open to the jury on the evidence before them to find beyond reasonable doubt that the applicant murdered the deceased even if the stabbing had occurred later in the altercation. This is particularly so when the period of time over which the altercation took place was a matter of minutes at most. 2. The evidence supporting that conclusion was this. There was no issue that the applicant was in an aggressive mood from the time he came in contact with the deceased's group. He was seen to be shouting at or talking loudly to Ms O'Neil and Ms Orchard when first observed. According to Ms Uaongo he was angry and pacing backwards and forwards. He engaged in a slanging match with Connor Young, which culminated in him saying to Connor Young "You want a go you little c---, I'll cave your head in". Hayley Orchard was observed to be egging the applicant on and encouraging him to attack Connor Young (T.274 – 275). 3. Considerable weight has to be given to the evidence of Ms Uaongo because she, apart from the applicant, was the only one of those present at the scene who had consumed a modest amount of alcohol. In that regard, the attack on her reliability is not made out. It is true that she confused the applicant with Mr Scott Snelgrove and that there were some inconsistencies between the statement she made to the police and the evidence she gave at trial. These matters were forcefully brought to the attention of the jury at trial and the jury were directed that they could take account of some evidence of a witness and reject other. More importantly, however, when one looks at the whole of the evidence of Ms Uaongo there is an internal consistency. Most particularly, the inconsistencies identified by the applicant comprised a tiny part of a substantial body of evidence. Finally, given the speed with which matters were occurring, her failure to shout out when she first saw what she believed to be a knife was well understandable. In those circumstances the jury, not this Court, was in a much better position to assess her evidence. 4. Ms Uaongo observed the applicant to start the fight by punching Connor Young in the face. This caused him to fall to the ground. When Connor Young regained his feet, the applicant hit him again causing him to again fall to the ground. The applicant then raised his leg and it appeared to Ms Uaongo that he was going to kick Connor Young while he was still on the ground. It was at this point that she intervened and grabbed the applicant around the waist and held him against the bars of a gate which were behind him. 5. That opening phase of the altercation in the swimming pool car park indicated a high level of aggression on the part of the applicant, despite the fact that Connor Young appeared to also want to fight. Ms Uaongo held on while the applicant tried to wrestle himself free until she observed his head moving onto her right shoulder and felt his teeth on her shoulder. At that time Connor Young was still on the ground, apparently kicking at the applicant, who was kicking back. Again, this demonstrates the maintenance of a significant level of aggression on the part of the applicant. 6. Ms Uaongo described what then happened as follows: "Q. What happened after she tried to pull you back? A. As she's trying to pull me back I'm looking at Cycle, and I can see him trying to kick, and then I see him reach into his right pocket. Q. Yes? A. He grabbed something out and he flicks it. Q. Did you see Riley at any stage? A. No, not at that stage, no. Q. Where was Cycle when he pulled the thing out of his --- A. He was right in front of me." (T.284.41) 1. Later Ms Uaongo said: "Q. Tell us what happened then? A. So he flicked it and I'm trying to step back, trying to get my footing, and next thing I know Riley comes in on my left and goes to hit Cycle, and Cycle's still got the gadget in his hand and as he goes to strike me, Riley hits him, and in that motion of hitting him he slashes Riley's arm. Q. I want you just to tell us step by step about that again. You saw Riley come in, I think you said, from your left? A. Yep, from my left, so I'm stepping back and I see Riley go to punch Cycle in that way. Q. Do you know which hand Riley went to punch him with? A. Left. As he's going in left Cycle is going up with his right and that --- Q. When he did that could you see anything in Cycle's right hand? A. Yes. Q. What did you see, just so we're clear? A. The pocket knife. Q. And a moment ago you, although you're seated, you raised your right hand in an upward gesture? A. Mm-hmm. Q. When he made that gesture, he had that pocket knife you're talking about? A. Yes. Q. Could you see any of the tools on that object, the pocket knife, at that stage? A. I saw the knife section pointed out and then all the other tools were around his hand. Q. Could you see what colour it was at that time? A. No. Q. What happened after you saw the accused raise the pocket knife in the way you've described when Riley went to punch him? What did you see next? A. As Riley goes to strike, Cycle raised it, and I don't think Riley noticed what happened because --- Q. Don't tell us what you think about that, just tell us what you saw or heard? A. With Riley striking that way, Riley hit with the other arm and then he just kept hitting Cycle, and they kept moving." (T.286.1 – .43) 1. Ms Uaongo said that thereafter they both remained on their feet, moving about, and she observed Riley (the deceased) punching the applicant in the face on a number of occasions. It should be noted that at this time in the trial the applicant had not admitted that he was the one who stabbed the deceased. There was, however, no evidence of anyone else having or producing a knife during the course of the altercation. 2. Ms Uaongo described the deceased as punching the applicant, then grabbing him by the throat and pushing him over a fenced area. This continued for approximately a minute until the deceased was grabbed by Connor Young in what was described as a "bear hug". The applicant was described as getting to his feet and holding his throat. Ms Uaongo could no longer see the pocket knife at that time. The last time she saw the pocket knife was when she stepped back and the deceased hit the applicant. 3. There appears to have been no further confrontation between the deceased and the applicant, although the applicant was observed to be very angry and was abusing Ms Uaongo's group. A short time later, after Hayley Orchard had punched Jake Burrage and struck him on the head with a bottle of rum, she heard the deceased scream out and observed him start running from the pool car park. 4. It is clear from the applicant's plea of guilty to manslaughter that what Ms Uaongo observed must have been the knife. This was confirmed by the evidence of Jake Burrage, who was quite familiar with the Leatherman knife. His evidence was: "Q. What did you see after that? A. I seen that Connor got hit and dropped and then I seen Cycle pull out something from his pocket. … Q. What was that? A. It appeared to look like a knife. Q. What sort of knife? A. A Leatherman. Q. What's a Leatherman? A. It's a, kind of a knife that has all these little gadgets on it, like pliers and whatnot. Q. It has gadgets on it like pliers? A. Yeah, pliers and screwdriver and that. Q. And a knife blade? A. Yes. Q. Which pocket did he appear to take that out of? A. Left." (T.395) 1. Mr Burrage described the same flipping motion as had Ms Uaongo when the knife was pulled from his pocket (T.396). It is clear from that evidence that at the time the applicant took the knife from his pocket, he was not under threat. He had disposed of Mr Young and freed himself from Ms Uaongo. At the time the applicant produced the knife, the deceased had not yet come to the assistance of Mr Young. It was well open to the jury to find beyond reasonable doubt on that evidence that the applicant did not believe that it was necessary to use the knife to defend himself at the time that he produced it. 2. Although Ms Uaongo only gave evidence of actually seeing the applicant slash at the deceased on one occasion, it does not exclude the likelihood that he also stabbed him using a more direct motion, at or about the same time, but Ms Uaongo did not observe it. We know something like this must have happened because of the nature of the wounds described by Dr Beer. It matters not that Dr Beer's evidence of the wounds being inflicted at the same time is ambiguous. Whichever way one interprets his evidence, its effect is that the three wounds which he observed were inflicted as part of the same episode or series of actions, i.e. the infliction of defensive wounds in the course of which there was a direct stabbing through the sternum to the heart. 3. Accordingly, if one accepts the accuracy of Ms Uaongo's evidence about the slashing gesture by the applicant, and one also has regard to Dr Beer's evidence that the three wounds he observed were inflicted as part of the same sequence of events, there was ample evidence before the jury to conclude that the fatal stabbing took place very soon after the slashing motion described by Ms Uaongo but which was not observed by her. This is not surprising given the speed with which events were occurring and the fact that a number of different things were happening at the same time. These were inferences which could be properly drawn by the jury from the available evidence. 4. Even if that scenario were not open on the evidence, it is clear from Ms Uaongo's observations that the confrontation between the applicant and the deceased occupied a little over a minute and ended when the deceased obtained the upper hand and pushed the applicant into the bushes. Because the applicant had produced the knife at a time when he was not under direct attack, but had apparently used it in the course of the minute or so that he was fighting with the deceased, it was still open to the jury to find beyond reasonable doubt that he did not believe it was necessary to use the knife to defend himself, particularly when he had so successfully disposed of Mr Young and released himself from Ms Uaongo. In making that assessment, one also has to keep in mind the high level of aggression displayed by the applicant when he threw the first punch at Mr Young and knocked him to the ground and which he maintained by punching Mr Young again and attempting to kick him. 5. The evidence relied upon by the applicant does not significantly weaken either scenario. The fact that the applicant walked backwards out of the car park meant no more than taking precautions against being attacked from behind. It is clear from Dr Beer's evidence that he regarded a scenario of the deceased falling forward onto the knife as unlikely. In any event, there was no evidence to that effect. On the contrary, the deceased seemed to be more successful than the applicant in his confrontation with him. 6. It is not accurate to say that the fight ended abruptly and that the deceased immediately headed in the direction of the police station. On the contrary, he was "bear hugged" by Mr Young in gratitude for his intervention and appears to have been present when Ms Orchard punched Mr Burrage and then struck him on the head with a bottle. It was only then that the deceased cried out. The evidence of three stab wounds is more consistent with an aggressive attack than with a defensive posture where one would have expected the "defender" to make preliminary threatening movements sufficient to discourage an attacker. 7. The absence of bloodstains in the vicinity of where it was believed the confrontation took place is explained by Dr Beer's evidence that part of the cause of death was the accumulation of blood within the chest cavity, thereby impeding the heart's capacity to pump blood, i.e. most of the bleeding was internal. 8. When one looks at the available evidence as a whole, which is primarily that of Ms Uaongo and to a lesser extent Mr Burrage, there is a certain air of unreality about the claim of excessive self defence. At the time that the applicant is said to have had a belief that it was necessary to defend himself by using a knife, he had been very successful in defeating Mr Young and fending off Ms Uaongo. There was no good reason identified in the evidence as to why at that point in time he would have felt it necessary to defend himself by producing and using a knife. In that regard, the evidence is clear that he produced the knife before the deceased intervened. 9. There was a powerful body of evidence relating to post-offence conduct by the applicant which allowed inferences to be drawn as to his state of mind during the altercation with the deceased. At trial the applicant sought to explain this conduct by submitting that he did not understand the intricacies of the law relating to partial defences to murder and in particular, excessive self defence manslaughter. That submission sits uneasily with the applicant's statement to Ilana Asbury that he was going to go "self defence" and his requests, while he was avoiding police, for people to stab him. As the Crown pointed out in its closing address, what the applicant said to Ilana Asbury was not "I did it in self defence" but "I'm going to go self defence". 10. The matters relied upon by the Crown were: 1. The continuing aggression by him and Hayley Orchard reflected in his request by mobile phone for reinforcements and their continuing abuse of the other group was inconsistent with a belief that it was necessary to defend himself. 2. Hiding from and avoiding the police when they came looking for him. 3. Asking numerous people to clean and/or dispose of the Leatherman knife. 4. Asking Kayla Houston to arrange for someone to "staunch" Russell Payne and Carol Myles into withdrawing their statements, including giving them a "hotshot" if necessary. 5. His admission to Kayla Houston, when in a car looking for a place to dispose of the Leatherman, that he not only had stabbed the deceased but that when asked "where he'd done that?", he replied "In an upright position towards the heart". 6. His assertions that other persons had done the stabbing, in particular Hayley Orchard. 7. His repeated telling of lies in his electronically recorded interview, in particular that he did not know what had happened to the deceased, that he had no weapon on him, and that he did not tell Russell Payne that he had stabbed someone. 8. His request to Kayla Houston, while they were both in custody, that she lie to help him out. 9. His consistent failure to ever mention self defence when describing his conduct. 1. It strains credulity to accept that the applicant genuinely believed that it was necessary to defend himself by using a knife and yet at no time following the incident did he put that forward as an explanation for his actions. The closest he came to offering such an explanation was in the telephone call to Kayla Houston of 26 May 2013 (Exhibit V) when he asserted "them two c---s king hit me, I was f---d from there, you know what I mean because I was being attacked. The sheila had me pinned up against the fence and f---in' two of 'ems attacking me". The difficulty with relying upon that as an explanation was that it was patently false in that at no time did two people "king hit" him or even attack him. 2. If it were the fact that the applicant genuinely believed that it was necessary to defend himself by using a knife, it is difficult to explain his concerted attempts to intimidate witnesses which included administering a "hotshot" if necessary. Such extreme conduct was much more consistent with a person with a consciousness of guilt for the offence of murder than the lesser offence of manslaughter. That inference is of considerable weight once one accepts that at the time the applicant was attempting to attribute responsibility for the killing to someone else, he well understood, at least in general terms, what self defence meant and how it could be used in a criminal trial. 3. Although it was open to the jury to accept that all of the actions enumerated above were due to panic and distress because he knew that his actions had been responsible for the taking of a life, it was also open to them to find that these actions constituted an admission of guilt for the serious offence of murder, the meaning of which he also well understood. 4. While none of the above matters in isolation would be sufficient to establish beyond reasonable doubt the applicant's responsibility for the murder of the deceased, taken together as strands in a rope, they did achieve that standard. Because this was essentially a circumstantial case from the Crown's point of view, the actions of the applicant both before, during and after the incident, were of fundamental importance because his intentions and state of mind could be inferred from those actions. In those circumstances, his failure never once in either his electronic interview with the police or when explaining what had occurred to his friends, to say words to the effect "I stabbed him in self defence" or "I thought I had to do it to save my life" or anything similar is of considerable importance. It did not help that the jury had before them not only the applicant's failure to offer such an explanation but his repeated telling of lies to exculpate himself from any responsibility at all for the deceased's death. 5. Although the Crown bore the onus at all times of establishing the applicant's guilt beyond reasonable doubt, the absence of any evidence from the applicant about how and when he had stabbed the deceased and what he was feeling at the time left it open to the jury to find on the basis of the available evidence that the Crown had negatived self defence beyond reasonable doubt. 6. On that issue, the statement of principle by the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [54] – [55] has application: "50 Given the unchallenged conclusion that the respondent was the agent of his wife's death, the compelling inference is that he was the last person to see his wife alive and was the only person who knew the circumstances of her death. That inference did not, of course, diminish the overall burden on the prosecution of proving beyond reasonable doubt all elements of the offence of murder with which the respondent was charged. In the case of circumstantial evidence, the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence. However, where an accused person with knowledge of the facts is silent, then as was said in Weissensteiner v The Queen: "in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." 51 That passage was quoted with approval in RPS v The Queen. The significance to be attached to what was said in Weissensteiner must be understood in its context, as explained in Azzopardi v The Queen. Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses. It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source." 1. It follows from my independent assessment of the sufficiency and quality of the whole of the evidence, that I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant for the murder of the deceased. Apart from my own conclusion to that effect, I am also conscious of the advantage which the jury had of seeing and hearing all of the evidence. That is a most significant advantage when the task confronting the jury was to assess what evidence was reliable when a number of witnesses gave what appeared to be conflicting evidence. 2. The orders which I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed. 1. McCALLUM J: Subject to one small qualification, I agree with Hoeben CJ at CL, for the reasons his Honour has stated. My conclusion as to ground 2 is based on my own review of the evidence. His Honour's analysis of the evidence substantially accords with mine. However, I would respectfully not include in my own reasoning that part of his Honour's analysis set out at [239] and [240] of the judgment. 2. BELLEW J: I have had the advantage of reading in draft the judgment of Hoeben CL at CL. I agree with his Honour's conclusions in respect of Ground 1. In respect of Ground 2, and having independently viewed the evidence, I similarly agree with the conclusions reached by his Honour. ******** Amendments 07 December 2017 - 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: 07 December 2017