Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Wildsmith v R [2012] NSWCCA 116
• Hearing dates: 7 February 2012
• Decision date: 04 June 2012
• Before: McClellan CJ at CL at [1]; Johnson J at [67]; Rothman J at [68]

Decision

1. Grant leave to appeal.

2. Dismiss the appeal.

• Catchwords: Criminal - appeal - conviction - whether verdict inconsistent - whether verdict unreasonable or unsupported by the evidence - where evidence of witnesses was inconsistent - where witnesses may be criminally concerned.
• Legislation Cited: Evidence Act 1995
• Cases Cited: M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Osland v The Queen (1998) 197 CLR 316; R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628; SKA v The Queen [2011] HCA 13; 243 CLR 400
• Category: Principal judgment
• Parties: David Wildsmith (Applicant); The Crown
• Representation: E Ozen (Applicant); N Noman (Crown); Benjamin Leonardo Lawyers (Applicant); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/4327

Decision under appeal

• Citation: [2010] NSWSC 495
• Date of Decision: 2010-05-28 00:00:00
• Before: Kirby J
• File Number(s): 2009/4327

Judgment

1 McCLELLAN CJ at CL: The applicant was convicted following a trial of the murder of James Tautari on 27 December 2007. He stood trial along with four co-accused: Luke Tatchell; AC; AA and SS. The applicant and Tatchell were slightly older than 18, the others were slightly younger.

2 All of the co-accused were convicted but only the applicant and Tatchell were convicted of murder. The other younger co-accused were acquitted of murder but convicted of manslaughter.

3 The applicant raises two grounds of appeal.

Ground 1: That having regard to the evidence, the verdict of the jury was unreasonable, or cannot be supported; and

Ground 2: That in light of the verdicts of manslaughter for SS, AC and AA the verdict of murder against the applicant is unsustainable.

4 Both grounds of appeal require a detailed consideration of the facts proved at the trial.

5 The deceased had been in a relationship with the mother of AC's girlfriend, AH. The Crown case was that there was a history of domestic violence in the relationship. The Crown asserted that the motive for the assault which ultimately led to the deceased's death was, at least in part, revenge for the deceased's treatment of AH's mother.

6 The five offenders, together with three other persons (who ultimately gave evidence for the prosecution) had gathered at the McDonalds restaurant in St Clair. It was Boxing Day and the group had planned to go together to Bent's Basin, a popular swimming hole. AC was driving his car, a Red Nissan Pulsar SSS. AC's girlfriend saw the deceased and pointed him out to some of the group saying something to the effect of "there's that Jimbo guy." The Crown alleged that the applicant and SS had a discussion concerning the possibility of an assault on the deceased. After this discussion Tatchell and AC, together with SF, drove to Tatchell's home to obtain some weapons.

7 After obtaining the weapons they returned to the McDonalds restaurant where they were joined by another car driven by AC. The two cars, by this time carrying eight people, drove past the deceased on the way to an underpass where they parked and waited for the deceased who was on foot. The weapons were distributed and Tatchell, SS and AA ended up with sticks and a golf club.

8 The Crown case was that the youths formed into two groups, the first being Tatchell, AA, SS and the applicant and the second being AC, JR, JM and SF. The Crown alleged that the first group surrounded the deceased and started to hit him. The Crown alleged that Tatchell and SS hit the deceased numerous times.

9 In relation to the applicant, the Crown alleged that he sprayed mace "or similar substance" when the group had surrounded the applicant on the road and later struck him about the head and body using a weapon. Tatchell was alleged to have struck the deceased in a similar fashion with a metal bar he had brought from his house. SS was alleged to have struck the deceased with the handle of a shovel.

10 There were three persons (JR, JM and SF) who, although they were present at McDonalds and came along with the group, were not alleged by the Crown to be participants in the criminal enterprise. They gave evidence. Each of them was cross-examined as to their credit and, in particular, whether or not they were attempting to shift the blame to others to avoid their own criminal liability.

Ground 1:That having regard to the evidence, the verdict of the jury was unreasonable, or cannot be supported.

11 As the High Court recently confirmed in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14], when considering whether or not the verdict of a jury was unreasonable the appellate court is to make its own independent assessment of the evidence both as to sufficiency and quality. The question for the appeal court is one of fact, the appeal court being required to determine whether, notwithstanding that there is evidence upon which a jury might convict, "nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand": M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493, quoted in SKA at [14]. Only in circumstances where a doubt experienced by a court of criminal appeal can be resolved by the jury's advantage in seeing and hearing the evidence can the Court conclude that no miscarriage of justice has occurred: M at 494 quoted with approval in SKA at [13].

12 The Crown case alleged that the applicant participated in a joint criminal enterprise. It was alleged that the participants executed an attack on the deceased using weapons to inflict grievous bodily harm upon him. In the alternative, the Crown alleged that even if there was no plan to inflict grievous bodily harm, because they knew that weapons would be used in an attack it was within the contemplation of each of the accused that this may occur. The Crown alleged that the applicant, Tatchell, AA and SS actually participated in the attack and that AC was present, ready and willing to assist if necessary.

13 With respect to the applicant, the issue at the trial was whether or not he was part of any criminal enterprise to assault the deceased. If the jury found that he was, then the issue was whether, as part of any agreement to which the applicant was party, the infliction of grievous bodily harm was within the contemplation of the applicant as a possible consequence of the agreement. The evidence against the applicant came substantially from SF, JM and JR the persons who, although present, were not charged with any offence.

The available evidence

14 There was evidence from CCTV footage of the movements of the group at the McDonalds restaurant. It is plain from that footage that the applicant did not go with Tatchell when he left to obtain the weapons. The applicant does not appear to play any part in the discussion within the group following the identification of the deceased by AC's girlfriend.

15 The CCTV footage also makes plain that the applicant was the last person into the car. He was described by his counsel as a "reluctant passenger." This was in support of the submission, which was made at the trial, that the Crown could not prove that the applicant had joined the criminal enterprise (being the plan to assault the deceased) despite the fact that he had decided to go with the others.

16 None of the offenders gave evidence at the trial and only AC was interviewed by the police. Accordingly, the Crown case was contained in the evidence of SF, JM and JR. The applicant submitted that reliance on the evidence of these three witnesses was an unsafe basis for conviction for nine reasons:

(a) There is no evidence independent of the three "crucial" witnesses from which the applicant's intention may be inferred;

(b) With respect to each of the three "crucial" witnesses, they were aware that if they did not give a statement to police nominating who they said did what, that they themselves would be charged with murder;

(c) Each of the three witnesses lied to police, and/or the Children's Court at committal proceedings, with respect to important aspects of the evidence and their part in the incident;

(d) In addition to admitted lies, each of the witnesses had, at trial, changed their versions of events from the versions they had given to police and/or at committal;

(e) There was an inference that SF and JR had discussed the versions they would give police, could be drawn;

(f) Each of the three important witnesses gave contradictory evidence about the applicant's attitude toward any plan to do something to the deceased;

(g) Each of the witnesses gave significantly differing versions as to what the applicant was alleged to have done at the scene;

(h) There was no evidence available to the Crown as to what the plan was, or indeed when each of the accused were said to have joined; and

(i) There was no objectively verifiable evidence consistent with mace being used.

17 It is apparent (and accepted by the Crown) that at the time SF, JR and JM first cooperated with the police each of them had a concern that they may be charged with the offence. SF said he was informed that he could be charged but he made his statement as he was willing to help. JR made a statement to a solicitor which he understood would be provided to the police. He believed that if he did not cooperate he would be charged with murder. JM indicated that when he returned to make his statement he was told that he could be charged with being an accessory to murder.

18 Each of the witnesses was cross-examined about these circumstances and, accordingly, the veracity of their evidence was able to be assessed by the jury. The jury was also warned in appropriate terms in accordance with s 165 of the Evidence Act 1995.

19 The applicant submitted (Ground 1(c) and 1(d)) that each of the witnesses lied to the police, lied in the Children's Court and gave different versions of their evidence in court. SF admitted that he had lied to the police when spoken to on the roadside on the day of the incident when he denied his involvement. He also admitted that he lied that night when he went with his brother to the police station. When he was taken to contradictory evidence which he had given in the Children's Court he said that he had been confused as it was the first time that he had ever given evidence.

20 When first spoken to by the police JM denied that he was present. Later that night he told the police that he was with the others at Bent's Basin but not involved in the assault. He made a further statement to the police on 4 January 2008 in which he lied about how well he knew the applicant and Tatchell. He admitted that he lied to the police in part to protect SS. He also accepted that he had lied when giving evidence to the Children's Court.

21 JM mentioned in his statement that the applicant had used Mace on the deceased but admitted that he did not give this evidence in the Children's Court. In those proceedings he said that the applicant punched the deceased. However, at the trial he accepted that this would be a lie. He modified his account saying that he had "thought the applicant had hit the victim but he only maced him."

22 The applicant submitted in relation to Ground 1(e) that it could be inferred that SF and JR had collaborated by agreeing the account of the relevant events that they would give to the police. This submission was supported by the evidence of four telephone calls between the two of them, on 26 and 27 December 2007. However, only one phone call was of any length and each of them denied discussing with the other what they had told the police.

23 The trial judge was careful to direct the jury as to how they should assess the honesty and reliability of a witness' evidence. His Honour stated:

"Let me remind you of two things that I said when you were first empanelled as a jury and add two additional matters. Now, the first matter is something which I did tell you and that is the distinction between honesty and accuracy. Honesty is an attitude to the truth. The issue for you is, is a particular witness doing his or her best to tell you the truth as they know it? Accuracy is an entirely different concept. Accuracy depends upon other matters such as where the witness was standing in relation to certain events; whether they had a good vantage point; whether they are confused; whether they have mixed something up. All sorts of considerations enter into whether or not someone is giving accurate evidence.

An honest person may be doing their level best to give you their honest view but they may be completely mistaken. They may be inaccurate. So your task is to make an assessment of each witness. Can they be relied upon to provide accurate evidence? In determining that you can use the impressions that you had of the witness when they gave their evidence; their demeanour; their body language; what you thought of them. You may have regard to the consistency or the inconsistency of their account, and whether or not their story makes sense. You may consider as well whether or not they have some axe to grind or whether they have a reason to distort or embellish or conceal the truth. So that is the first aspect. The distinction between honesty and accuracy and the need to consider both.

Now the second matter, that in undertaking your evaluation of each witness and the evidence that they have given, you should not look at that witness in isolation. Rather, you should look at that witness in the context of all of the evidence. Does their evidence make sense having regard to other evidence? Is there a confirmation or contradiction of what a witness says provided by other evidence? So that is the second matter.

...

The third matter is that in respect of a witness' testimony it is not an all or nothing situation. You are not bound to accept everything a witness says or reject everything a witness says. You can accept 'this part' and reject 'that part'. You can approach it as it appears appropriate to you. Of course if you thought that a witness was deliberately lying to you or generally unreliable then you may be inclined not to accept anything that witness says, but again, that is a matter for you. It may be that something that witness says makes sense and you do accept. You may feel that his honesty or unreliability is confined to a particular aspect and you may feel that you may safely act on the rest. So that is the third matter."

24 His Honour clearly set out for the jury the evidence given by each witness and also gave the jury a clear understanding of the basis of the attack by counsel upon each of the witnesses.

25 Grounds 1(f), 1(g) and 1(h) concern the evidence given by the three witnesses in relation to the actions of the applicant before and during the assault and the inferences which may be drawn from that evidence as to the applicant's knowledge of the enterprise and his intent.

26 SF gave evidence that when Tatchell proposed amongst the group that "they were going to do something" about the victim the applicant said "no, not today". SF said that after Tatchell and AC returned from Tatchell's home with weapons Tatchell "walked up to [the applicant] and told him to get in the vehicle". SF said that he then heard the applicant say again "not today" and "just... leave it". SF said that Tatchell then told the applicant "don't be a pussy". SF later said that it was Tatchell or the applicant who said this, although he later confirmed that it was not the applicant.

27 SF initially claimed that after Tatchell called the applicant a "pussy" the applicant got into the car. However, after viewing CCTV footage he later accepted that the applicant got into the car a short time later. There was no dispute that the applicant entered the car at this later time.

28 SF gave an account of the assault. He said that the group went in two cars to the underpass. SF said that one car contained Tatchell, SF, AC and the applicant and the other car contained, SS, AA and JR. SF could not recall who the other passenger of the second car had been. SF said that after the two vehicles had parked and the passengers had gotten out Tatchell "handed out the objects that he had got [from his home]". SF said that Tatchell "gave the golf club to AA, the pick axe handle to SS and held on to the smaller [pole]".

29 SF described the commencement of the attack:

"Q: What happened next?

A: As we come up, the bloke had just walked past the underpass and Luke [Tatchell] had run up and hit him, I think around the side, I'm not sure where. I didn't see where he hit him.

Q: What happened next?

A:Then the other boys ran up and [AA] and [SS] - [SS] started hitting him, with Luke [Tatchell], and David [Wildsmith] ran up with something that looked like a pepper spray in his hand and sprayed him."

30 SF said that the spray looked like "a small black canister with a button on top". When asked what part of the victim the applicant had sprayed SF said that "he was standing about a meter away and spraying it on him". SF said that the victim was standing at the time the spray was used. During cross examination SF said that he saw the spray hit the victim:

"Q. All right then, so when he sprayed this guy with pepper spray and got him on his body and on his face, did you hear the man yell out?

A. Yeah, the man was yelling.

Q. From the pepper spray hitting him in the face?

A. He was yelling throughout the whole thing.

Q. Did you hear him yell out particularly when this pepper spray supposedly hit this man on the face?

A. Like I said, he was yelling throughout the whole thing so, yeah.

Q. So it clearly got him?

A. Obviously.

Q. And clearly had an affect, you say, is that right?

A. From my point of view yes.

Q. And that is an effect that has been caused by about 4-5 seconds of spray and perhaps another two occasions, yeah?

A. Like I said, the man was yelling. From my point of view it looked like it did connect with him.

Q.When you say from your point of view it looked like it connected with him, you told us that you saw it connect with him, haven't you?

A. Yes."

31 SF gave evidence about the persons who had hit the victim and the number of times that each person had hit him:

"Q. Now, you described Luke Tatchell hitting him first?

A. Yes.

Q. With the metal pole that you described, and then [SS] hitting him second. How many times did Luke Tatchell hit him?

A. Throughout the whole thing?

Q. Yes?

A. Would have been about 20 times.

Q. You said you saw [SS] hit him before - well I should ask you this - before David Wildsmith sprayed the substance how many times did Luke Tatchell hit the man?

A. It would have been maybe about four.

Q. And before David Wildsmith sprayed the substance how many times did [SS] hit the man?

A. Would have been about the same, maybe one less.

Q. Three or four then?

A. Yes.

Q. After he - withdraw that - how many times did you see [SS] hit the man?

A. Would have been about the same, roughly about 20 all up.

Q. Did anyone else hit him?

A. [AA] struck him with the golf club.

Q. How many times did [AA] hit him with the golf club?

A. Once.

...

Q. Apart from [SS] and Luke [Tatchell] and [AA], did you see anyone else hit him at that stage?

A. No."

32 SF said that the applicant had not been in possession of a weapon during the attack:

"Q. This is fair to say, isn't it, David Wildsmith didn't have, let's set aside the pepper spray for a moment, he didn't have, setting aside the pepper spray any weapon in his hand, that would be fair to say?

A. No.

Q. He didn't take a weapon out of the car, right?

A. No.

Q. He didn't take it up to Bennett Road, that's fair to say?

A. No.

Q. He didn't use a weapon, that's right isn't it?

A. Depends whether you call the pepper spray a weapon.

Q. I said let's put the pepper spray aside for a moment. He didn't use a weapon, right?

A. Okay, in those states, no. (sic)

...

Q. I think we can come back to this at least, you never saw him touch a weapon right?

A. Right."

33 Later, during cross-examination, he said that he saw the applicant take a metal rod into his house after the incident. When asked why he had not mentioned the fact that the applicant had a rod in his statement to the police or in prior testimony SF said that "Like to my memory I didn't realise that until you'd mentioned it, it's like I said, I only remember what was in my statement, key points and that".

34 JM gave evidence that after the victim was pointed out to the group it was SS who urged them not to worry about him. He said it was Tatchell and the applicant who encouraged SS to participate:

"Q. What happened next?

A. [SS] saying don't worry about it let it go (sic). David [Wildsmith] and Luke [Tatchell] got in his ear, calling him weak and that.

Q. Was something said before that about Jimbo?

A. I don't think so.

Q. But you said that Wildy [David Wildsmith] and Luke [Tatchell] got in his ear?

A. Got in [SS]'s ear.

Q. And said what?

A. Don't be weak because [SS] didn't want to do anything.

Q. ... All right. Well, tell us if you can, doing the best you can, tell us who said what?

A. [SS] said "just leave it" and Luke [Tatchell] and David [Wildsmith] were calling him weak.

...

Q. Are you able to say who said "don't be weak"?

A. David [Wildsmith].

Q. Did Luke [Tatchell] say anything?

A. I can't remember what he was saying but he was saying something."

35 JM said in his evidence in chief that Tatchell, AC, SF and the applicant then left in AC's vehicle. JM said that after the car returned the applicant and Tatchell told the others to follow them. During cross-examination JM was played CCTV footage from the McDonald's restaurant that clearly showed that the applicant did not leave to get the weapons with the others. After viewing this footage JM accepted that the applicant had not left with the McDonalds restaurant at that time.

36 JM gave evidence that after the two cars reached the underpass the group waited underneath the underpass for "a couple of minutes". JM said that the applicant and Tatchell were "telling us to be quiet". JM also said that while the group was waiting "David [Wildsmith] or Luke [Tatchell] threw a bit of wood to [SS]. [SS] tried to say no and they said 'take it don't be a bitch". JM did not clearly remember whether the applicant or Tatchell had made that statement.

37 JM said that Tatchell was armed with the handle of a shopping trolley and that the applicant had a "can of mace". JM said that he knew that the can was mace because the applicant had showed it to the group and "said it was a can of mace". JM described the can as being black and approximately 8 mm to 10mm long.

38 JM gave evidence about the attack:

"Q. What happened next?

A. Jim walked above us and then we all ran out and when we all got to him [SS] hit him in the leg and then threw the pole and then Chookie [Tatchell] just started hitting him. [AA] and [SS] tried to pull Luke [Tatchell] and that off and Wildy [David Wildsmith] pulled out the mace and maced him.

Q. Let's take it slowly. You say "we all ran out", is that right?

A. Yes.

Q. And you had to get up to the level of the road, is that right?

A. Yes.

Q. Did you all run out the same side of the tunnel?

A. Yes.

Q. You all ran. Did you see Jimbo do anything when you ran towards him?

A. I was behind everyone.

Q. You say you were behind everyone. Were you the last one out?

A. Yeah. Me and Aaron were behind everyone.

Q. And you said the next thing was that [SS] hit him in the leg?

A. Yes.

Q. With what?

A. The bit of wood.

...

Q. ... What happened then?

A. Then Chookie, Luke [Tatchell] sorry, then started hitting him with the trolley pole and he ended up against the house and then David [Wildsmith] maced him and [SS] and [AA] kept trying to rip him off.

Q. You say Luke started hitting him with the trolley pole?

A. Yes.

Q. Where was Luke hitting him?

A. In the head.

Q. How many times did Luke hit him?

A. Over and over.

Q. Did you see anything happen to the man when that happened?

A. His hat fell off and there was a big gash.

...

Q. After you saw the big gash did Luke hit him again after that?

A. Yes.

Q. Did anyone else hit him?

A. No.

Q. Were the only two people that you saw hit him, were they [SS] and Luke?

A. Yes."

39 JM said that the applicant sprayed mace at the victim from a "couple of metres" away. JM did not see any spray come out of the can. During the attack JM heard the applicant and Tatchell "yelling racist stuff" at the victim. However, he said that there was "no doubt" that the applicant had not "hit the victim with any weapon and did not punch him".

40 JM stated that he did not see anyone with a golf club. JM also admitted that he had told the Parramatta Children's Court that he did not see anyone other than Tatchell and the applicant attack the victim. He agreed when it was put to him that the evidence he gave in the Children's Court about the applicant hitting the victim was a "straight lie" and further agreed that at the Children's Court he was "prepared to lied, effectively under oath, to put this man [the applicant] in for something he didn't do". JM said that the reason that he had lied was to protect [SS]. He agreed that when giving evidence in the Children's Court that he did not say that the applicant had maced the victim. JM denied that the reason that he had failed to mention that the applicant had used mace in the Children's Court was because it was a lie.

41 JR gave evidence that Tatchell, the applicant, AC and SF left McDonald's shortly after the victim was pointed out to the group by AH. He admitted during cross-examination that the applicant did not get into the car at that time. JR said that whilst at the McDonalds Restaurant he observed the applicant pull out mace and identify it as mace:

"Q. Did you see them do anything? I'm not asking you whether they did anything bad particularly but anything?

A. David pulled out a can of mace.

Q.Where did he pull it out from?

A. Like a bumbag thing.

Q. Where was the bumbag thing?

A. Around his waist.

Q. He pulled it out and what did you say it was, a can of mace?

A. Yeah.

Q. How did you know it was a can of mace?

A. That's what he said.

Q. What did he say?

A. I can't remember exactly what he said but someone said something along the line of "What is that" or something and he told us.

Q. What did he say? When you say he told us, what did he say?

A. He said "It's capsicum spray".

Q. Did he use the expression "capsicum spray"?

A. No, he said "mace".

Q. He said "mace"?

A. Yeah."

42 JR said that when the group arrived at the underpass "David [Wildsmith] and Luke [Tatchell] were, like, carrying metal poles". He said that Tatchell and the applicant commenced assaulting the victim with "poles" and half way through SS joined in by punching:

"Q. What was [SS] doing?

A. I don't know if he was actually hitting the guy at that time. I can't remember but when Luke and David stopped hitting him, I don't know, half way through or something, he started punching him, like he wasn't using any weapons, he was just punching him."

43 JR said that AA also then hit the victim once to his chest, upper part of his body or head, with a golf club.

44 JR said that a man drove past in a ute during the assault and that he was maced by the applicant:

"Q. Apart from the people attacking him and you and the others that were standing back, were there any other people around?

A. No, that was pretty much it. There was a guy that drove past in a ute when the assault was happening.

Q. Which way was he going, towards Erskine Park or towards McDonald's?

A. Erskine Park Road.

Q. What happened?

A. Well, obviously he seen the guy getting hit and he went to stop.

Q. What happened then?

A. Then as he went to stop David sprayed him with the mace like through the window I think.

Q. What did you actually see David do at that point? You say he sprayed him through the window with mace, what did you see him do?

A. That's what I seen him do.

Q. How did he do it, can you describe how he did it?

A. He just, I don't know, the guy went to, I don't know, when the guy was on the road and then the guy sort of pulled over to the side a bit in the ute and then he just, I don't know, sprayed the mace at him through the window in the car.

Q. Could you see David holding the mace?

A. Yes.

Q. Did you see him actually spray something?

A. I didn't, well--

Q. Can I ask you this. Did you see him holding the container?

A. No.

Q. Well, you told us David sprayed the man with mace. Describe what you actually did see if you would, please?

A. Well, when the guy pulled over I seen his arm come out.

Q. David's arm come out?

A. Yeah, like yeah. Well I don't know. It's hard to explain.

Q. Just take your time. Explain what you saw David do?

A. I just said. I just told you. Like I couldn't tell you a hundred per cent exactly what happened, but yeah.

Q. You said David's arm came out. Where was David in relation to the car?

A. Well, the guy pulled over right next to where the guy was getting hit and just up a little bit maybe, and then, yeah.

Q. Then you what?

A. Then David went and sprayed him.

Q. David approached the car, did he?

A. Yeah.

Q. Did he approach the driver's side of the car? Is that what you are describing?

A. I don't know if it was the driver's side or not but, can't remember. I don't know if he sprayed through the window.

Q. Did you see some spray go through the window?

A. Not through the window, but I seen some spray come out at something, yeah.

Q. You saw some spray come out?

A. Yeah."

45 JR said that he could not recall the applicant macing the victim:

"Q. So David Wildsmith did not spray Jimbo, that would be fair to say?

A. Not when he was hitting him, no.

Q. At any time?

A. Can't think at the moment. I don't know.

HIS HONOUR

Q. You don't know, is that your answer?

A. Yeah.

MR BRADY

Q. You just don't know one way or the other, is that what you say?

A. Well, I can't think at the moment."

46 It is plain that there are inconsistencies in the evidence of the three witnesses. The incident itself took place in a very short space of time. The victim was pointed out to the group at 3.39 pm. By 3.45 pm the group had obtained weapons and left the McDonald's car park. The 000 call was made at 3.53 pm. The attack itself took no longer that a minute. In the circumstance of an attack including multiple assailants over a short period of time inconsistencies in the evidence of the three witnesses is unsurprising. As McHugh J said in M at 534:

"It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of the occurrence of a witnesses general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."

47 Notwithstanding the inconsistencies, the evidence is clear that the applicant travelled to the scene in the car with Tatchell together with the weapons Tatchell had sourced from his home. The weapons were removed from the car in the applicant's presence and handed out in his presence. All three witnesses indicated that the applicant was physically involved in the attack upon the victim. SF said that the applicant used mace on the victim. JR said that the applicant used a metal pole and he said that he also observed the applicant with mace at the scene. JM gave evidence that the applicant maced the victim, although he later admitted that he did not see mace come out of the can. JM also said he saw the applicant in possession of a metal pole after the attack. The inference that the applicant joined in the attack with the requisite intention is plainly open on this evidence.

48 In relation to Ground 1(i) the applicant submitted that there was no objectively verifiable evidence of mace being used. This was accepted by the Crown.

49 There were a number of sources of evidence that failed to support, or even contradicted, the use of mace spray. The sunglasses and cap worn by the deceased were forensically analysed. This analysis did not disclose the presence of any of the chemical constituents of mace or pepper spray.

50 Evidence was also given by the paramedic who attended the victim shortly after the attack. The paramedic said that the victim did not complain of any of the symptoms that commonly accompany the use of mace or pepper spray, such as burning eyes or skin. There was, according to the paramedic, nothing suggesting injuries inflicted by mace.

51 In addition to the evidence from the paramedic, evidence was given by two eyewitnesses to the assault who were driving in Bennett Road while the attack took place. Neither saw mace sprayed. One remembered a ute stopping, however he did not see the driver of the ute being sprayed with mace.

52 The respondent submitted that the lack of evidence supporting the use of mace was not fatal to the Crown case. The Crown submitted at the trial that the absence may be explained by the use of a spray by the applicant that was incorrectly identified as mace. It was also submitted that mace may have been sprayed but was not detected by forensic examination.

Conclusion on Ground 1

53 I have reviewed the entirety of the evidence. Although I acknowledge the inconsistencies in the evidence given by the witnesses to the events, the jury had the advantage of seeing the witnesses in the context and atmosphere of the trial. The jury were satisfied that the accused had participated in the attack upon the victim, with the requisite intention. The evidence given at the trial was capable of supporting the charge and bearing in mind the advantage which the jury had, I have no doubt that the applicant was rightly convicted.

54 I reject this ground of appeal.

Ground 2:That in light of the verdicts of manslaughter for SS, AC and AA the verdict of murder against the applicant is unsustainable.

55 The jury returned a verdict of murder in respect of the applicant but returned verdicts of manslaughter in respect of AC, AA and SS. The applicant submitted that this gave rise to inconsistent verdicts founded on factual matters, rather than matters of a technical or legal nature. Accordingly it was submitted that for this reason the jury's verdict in respect of the applicant was unreasonable. The principals to be applied in cases where jury verdicts are said to be factually inconsistent were set out by McHugh J in Osland v The Queen (1998) 197 CLR 316 at [119]-[121]:

"[119] The present case is not one where there were verdicts that were legally or technically inconsistent with each other on the face of the record. Verdicts are inconsistent in that sense where, for example, a person is convicted of being both thief and receiver or of attempting to commit an offence and committing that offence. In earlier times, verdicts in a conspiracy case would be inconsistent in this technical sense if one of two conspirators was found not guilty and the other convicted. But it is now established that there is no necessary inconsistency in a verdict of conviction and a verdict of acquittal in such cases.

[120] When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their mind to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe and unsatisfactory.

[121] In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. In a case where the accused claimed that his conviction should be set aside because of the inconsistency of verdicts, McGarvie J said [in R v Bacash [1981] VR 923 at 929] '[i]n considering this question it is vital to consider the way in which the trial judge charged the jury'. An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues, evidence and directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury."

56 The issue in Osland was whether verdicts delivered by different juries in separate trials were inconsistent. In R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 a five member bench of the New South Wales Court of Criminal Appeal applied the same principles to circumstances where allegedly inconsistent verdicts were returned by the same jury in a joint trial. Howie and Johnson JJ said at [44]:

"...the question that arises is whether, in light of the evidence, the issues raised and the directions given to the jury 'no reasonable jury who applied their minds to the evidence could have arrived at the two different verdicts'."

57 Although in the present case much of the evidence of the various witnesses was admissible in relation to each of the accused there were a number of significant differences in the evidence available in relation to the three juvenile offenders (SS, AC and AA) and the applicant.

58 SS, AC and AA had no prior criminal convictions. They each called evidence of good character and received the benefit of a good character direction from the trial judge. The jury were entitled to have regard to this evidence when assessing the question that they had committed the alleged offence.

59 Prior to the trial AC had participated in an ERISP, which became Exhibit U in the trial. The applicant did not participate in an ERISP. Accordingly the jury had an account of events from AC available to it when assessing the case against him.

60 Similarly, in relation to SS evidence was given by Miad Anari Shahidi, a close friend of SS, to whom SS had admitted to hitting the victim in the legs as part of a plan to hurt the victim rather than hitting the victim in the head. Counsel for SS submitted that if this evidence was accepted it would support a conviction for manslaughter but not murder.

61 The central issue at trial was whether each of the accused was party to a joint criminal enterprise to cause grievous bodily harm to the deceased or to assault the deceased with the contemplation that grievous bodily harm may result. The age of each of the accused was identified by counsel and the trial judge as relevant to their understanding of what was going to occur and their intention when participating in the assault.

62 Counsel for each of AC, SS and AA emphasised the relatively young age of their clients in their final addresses to the jury. Counsel distinguished the applicant and Tatchell from the other accused as being "slightly older and bigger young men". In response to a question from the jury about how they were to determine the intention of each of the accused the trial judge said:

"You may think it relevant to have regard to the ages of the various accused and the particular accused that you are considering. The fact that they were, I think in every case, very young men, 17 and 18,....these are ....matters which are potentially available to you depending upon your view and depending upon your satisfaction as to the particular role of each accused, if any, from which you may draw an inference of intention."

63 His Honour also said that the jury should:

"Bear in mind always that you are dealing here with a group of very young people. I think one counsel referred to his client as a boy. Some of them were just out of school."

64 Apart from these matters the jury were clearly instructed about the need to scrutinise the case of each accused separately and reminded that there was the potential for different verdicts. In his remarks at the commencement of the trial the trial judge explained the nature of a joint trial to the jury in the following terms:

"This is what is termed a joint trial and it proceeds as a joint trial as a matter of convenience, that is a lot of the same witnesses are called in the Crown case against each accused and therefore it's convenient that they give their evidence in the one trial, but at the end of the case you will be asked to consider the case against each accused.

Now most of the evidence that you will hear will be admissible against all accused but there will be some evidence, no doubt, which will be admissible against a particular accused and you will be told exactly what evidence is admissible against each accused, and ultimately your task will be to determine a separate verdict in relation to each accused based upon the evidence admissible against each accused, and that, as I say, will be identified for you. So at no stage should you approach you task by considering whether they are guilty. You must consider each case individually. It would be quite wrong and unfair to approach it in that way. You must consider the case for and against each accused quite separately, and as I say at the end of the trial you will be asked for your separate verdicts in relation to each accused."

65 In his summing up the trial judge said:

"...you are considering five separate cases. They do not have to all have necessarily the same answer. Each accused and the agreement, if any, or the joining of the joint criminal enterprise, if any, by that accused is to be considered in the light of the evidence relating to that accused. So that, one accused, for instance, to give an example and I'm not suggesting any answer to the question, one accused may have a clear notion of what is going to happen right from the outset, and he and another accused might have a joint criminal enterprise to hit this victim right from McDonalds. Others may be in the situation that Mr Pontello described, you remember his example of people going to the botanical gardens, some have an intention, some don't quite know what they are going to do until they get there, and so on. Others may later join in, and consequently they may later, you may get a situation where in respect of a particular accused you determine that that accused did not join the joint criminal enterprise until a moment which is later in time than a previous accused. For instance you may place emphasis upon, [and] it is a matter for you, different vehicles, one vehicle was involved in going to Luke Tatchell's, one wasn't. That may or may not be a relevant matter but I am simply giving you an illustration of why you must consider each accused individually and the answers relating to that accused may therefore be different to another accused."

Conclusion on Ground 2

66 I fully appreciate that the applicant may believe that the jury's verdict is unfair to him compared with his younger companions. However, I have given careful consideration to the applicant's submissions. I am satisfied that the jury's verdict can be rationally explained by the evidence which was favourable to the younger accused and the role which their youth may have played in their understanding of and participation in the relevant events. I am not persuaded that the reasoning process of the jury relevantly failed. I reject this ground of appeal.

Orders

Although I would grant leave to appeal the appeal should be dismissed.

67 JOHNSON J: I agree with McClellan CJ at CL.

68 ROTHMAN J: I agree with McClellan CJ at CL.

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Decision last updated: 30 August 2012