Murder Conviction Upheld Despite Jury Directions Dispute

The Court upheld the conviction of the claimant for murder and attempted murder, rejecting arguments that the directions to the jury were erroneous and that the verdicts were unreasonable. The Court found that the necessary mental element for murder can be satisfied even if the intended target is not the actual victim.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2024] NSWCCA 114 Hearing dates: 16 February 2024 Decision date: 12 July 2024 Before: Bell CJ at [1]; Button J at [2]; McNaughton J at [202] Decision: (1) Leave to appeal against conviction granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against conviction – murder – [NAME] – basic and extended relied upon by [NAME] – directions to [NAME] – where [NAME] case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where [NAME] directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct [NAME] that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and [NAME] – no miscarriage of justice occasioned CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to [NAME] to return verdicts of guilty on both counts – appeal dismissed Legislation Cited: Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Crimes Act 1900 (NSW) s 18 Cases Cited: Batak v R [2024] NSWCCA 66 Carbone v R (No 2) [2024] NSWCCA 7 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Dawson v R [2024] NSWCCA 98 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Wilio [2022] VSC 86 Royall v R (1991) 172 CLR 378; [1991] HCA 27 Russell v R [2023] NSWCCA 196 Shepherd v R (1990) 170 CLR 573; [1990] HCA 56 The Queen v [NAME] at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473 Category: Principal judgment Parties: [NAME] (Applicant) Rex (Respondent) Representation: Counsel: [redacted] M England (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2017/168582 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Date of Decision: 24 November 2020 Before: Hamill J File Number(s): 2017/168582

HEADNOTE [This headnote is not to be read as part of the judgment] On 24 November 2020, [NAME] (the applicant) was convicted of two offences following the conclusion of a joint trial at the Supreme Court of NSW. The applicant stood trial alongside five co-accused persons; some were charged jointly with the applicant, and others were accused of separate (but factually related) offences. The [NAME] case at trial was that, weeks before the offending took place, [NAME] accepted a contract to murder a [NAME], who had owed a debt to two significant drug dealers. On the evening of 1 February 2017, the applicant travelled to an address in Guildford with [NAME] and another man, [NAME]. [NAME] and [NAME] entered the property, while the applicant remained outside. Inside, [NAME] fired multiple shots. [NAME] was able to flee unharmed, but an unintended victim, [NAME], was shot and killed. Liability for the offending on the basis of both basic and extended [NAME] was left to the [NAME]. The applicant was ultimately found guilty on both counts; first, the murder of [NAME], and second, shooting with intent to murder [NAME]. The applicant sought to appeal against his conviction on two proposed grounds; first, that the directions on [NAME] liability for the murder of [NAME] involved error and occasioned a miscarriage of justice; and, second, that the verdicts of guilty are unreasonable. [ADDRESS] held (Button J, with Bell CJ and McNaughton J agreeing), dismissing the appeal: As to ground one:

1. Though submissions for the applicant contended that the necessary mental element for murder could not be satisfied in the applicant's case where the deceased was not the intended target, the Court did not accept that directing the [NAME] in this way was erroneous: [49]-[53].

1. The longstanding doctrine of transferred malice is applicable to both the principal offender (here, the shooter) as well as the non-actors involved in the [NAME] (including the applicant): [55]-[56].

2. In the context of basic [NAME], the applicant bears primary liability. [ADDRESS] observed it would be very difficult to envisage a situation in which anything more would be required to be proven against the applicant, above and beyond that already required to be made out against the shooter: [57]-[58].

3. In the context of extended [NAME], the liability of the applicant has been explained to be derivative. [ADDRESS] found that it was difficult to see how the doctrine of transferred malice could not be applied against the applicant, in the context of derivative liability, when the shooter had been found guilty by the same [NAME]: [59]-[63]. Batak v R [2024] NSWCCA 66; Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5, considered.

1. The outcome of an unintended, or "wrong", person being harmed or killed does not entitle the applicant to acquittal purely on the basis that the [NAME] anticipated that a different person would have been the victim: [63]-[65].

2. No miscarriage of justice was occasioned by the directions given to the [NAME] at trial: [1], [70], [202]. As to ground two: 1. [ADDRESS] accepted that adverse credibility issues did arise regarding most, if not all, of the civilian witnesses: [173].

2. However, the Court found it was open for the [NAME] to return verdicts of guilty on both counts based on the following evidence: see [177]-[193].

1. The applicant was close to the other co-offenders, and travelled with them to Guildford (where [NAME] was located) on the night of the offending.

2. Though the applicant remained outside while the shooting took place, he thereafter attended at the back door of the property whilst armed, and in the company of both co-offenders, shortly afterwards.

3. Soon after the shooting, the applicant took steps to hide his involvement in the offending. This included his organising for at least one firearm to be destroyed.

4. Multiple witnesses provided evidence of admissions made by the applicant. Though this evidence was to be approached with much caution, the evidence of one witness had to be considered in the context of all others. 1. [ADDRESS] was satisfied that the applicant was armed at the back door of the home in Guildford very shortly after the shooting. Reflecting on the establishment of that circumstantial fact, in the context of the evidence as a whole, the Court found it was well open for the [NAME] to return guilty verdicts on each count: [1], [196]-[200], [202].

JUDGMENT 1. BELL CJ: I agree with Button J's analysis with regard to the first ground of appeal, and that it should be dismissed. In relation to the second ground, having reviewed the record for myself and also having had the benefit of Button J's careful analysis, I agree with both Button and McNaughton JJ that the verdict was well open to the [NAME] and that this ground must also be dismissed. I agree with the orders proposed by Button J.

2. BUTTON J:

Introduction [NAME] was convicted of two offences at the conclusion of a trial before Hamill J and a [NAME] on 24 November 2020. The first was that, on 1 February 2017 at Guildford, a suburb of Sydney, he murdered [NAME] (count 4 on the indictment). The second was that, on the same date and at the same place, he shot at [NAME] with intent to murder [NAME] (count 5 on the indictment).

1. Those were the only counts on the indictment on which Mr [NAME] himself was arraigned. Other persons stood trial with him, some of them arraigned jointly on the same counts along with him, others of them accused of separate (but factually related) offences. Some of those persons were acquitted, and others were convicted. It is not necessary to set out those outcomes in detail at this stage, although I shall do so later.

2. Subsequently, Mr [NAME] was sentenced to a substantial term of imprisonment, against which there is no application for leave to appeal.

3. Two grounds of appeal against conviction are notified: Ground one: The directions on [NAME] [[NAME]] liability for the murder of WU (Count 4) involved error and occasioned a miscarriage of justice. Ground two: The verdicts of guilty are unreasonable.

1. The first ground raises a question of law alone, but requires leave because the point was not taken at trial. The second raises a question of mixed law and fact, and does require leave, with the result that in the rest of this judgment I shall refer to Mr [NAME] as the applicant.

2. For the following reasons, I consider that the necessary leave should be granted, but the appeal against conviction should be dismissed.

Ground one: The directions on [NAME] liability for the murder of WU (Count 4) involved error and occasioned a miscarriage of justice.

1. In order to understand this ground, I need set out only a brief sketch of the alleged facts underpinning the [NAME] case, and the bases upon which that case was left to the [NAME]. That is in contrast to ground two. Furthermore, because only count 4, the murder of [NAME], is impugned by this ground, it is the focus of the following.

2. In a nutshell, the [NAME] case was that, on the evening of 1 February 2017, the applicant travelled to an address in Guildford with two confederates, [NAME] and [NAME]. It was alleged that [NAME] had accepted a contract to murder a [NAME], who was inside. [NAME] and [NAME] entered, whilst the applicant remained outside the premises. [NAME] fired a shot and killed [NAME] (the foundation of count 4) in an effort to kill [NAME]. Moments later, [NAME] continued to fire multiple shots at [NAME], still trying to fulfil the contract (the foundation of count 5). [NAME] survived the evening.

3. That aspect of the matter – that [NAME] was trying to shoot [NAME], but in the event "unintentionally" shot and killed [NAME] – is the centrepiece of this ground.

4. As written directions provided to the [NAME] show (MFI 86), the [NAME] case for each count against the applicant was based upon the doctrine of [NAME] (hereafter for brevity, [NAME]). That was entirely orthodox, bearing in mind that it was never alleged that the applicant himself had fired the shot that missed [NAME], nor the further shot that killed [NAME]: to repeat for clarity, the shooter regarding both projectiles was said to be [NAME].

5. The reliance by the [NAME] upon [NAME] had two aspects: basic [NAME] and extended [NAME], as follows.

6. Regarding count 4, the [NAME] was directed about the elements of murder in the following terms: the [NAME] needed to prove beyond reasonable doubt: the death of [NAME]; that it was caused by a voluntary act of the accused; that the act was done with an intention to kill or to inflict grievous bodily harm; and that it was not done in self-defence or defence of another (that issue had arisen on the evidence for the consideration of the [NAME]).

7. Regarding all persons accused of murder except [NAME], the [NAME] was then referred to a document setting out the elements of [NAME].

8. As for basic [NAME] pertaining to the murder count, the [NAME] was directed in writing that the [NAME] needed to prove beyond reasonable doubt: the existence of a [NAME] on 1 February 2017 to kill [NAME]; that the applicant was a participant in that [NAME]; that, between them, the accused persons had committed all of the elements of the offence of murder as separately explained; and that the fatal act was done in furtherance of the [NAME] to kill [NAME].

9. As for extended [NAME] pertaining to the murder count, the [NAME] was directed in writing that the [NAME] needed to prove beyond reasonable doubt: that a [NAME] existed on 1 February 2017 "to intimidate [NAME] with the use of a loaded firearm"; that the accused was a participant in that [NAME]; that [NAME] committed all of the elements of the offence of murder as previously explained; that the accused "foresaw the real and not remote possibility that a co-participant would commit each and every one of the essential elements of murder, including the intention to kill or inflict grievous bodily harm and otherwise than in self-defence"; and that the accused continued to participate in that [NAME] "with that foresight or that realisation".

10. For completeness, I record that manslaughter was left to the [NAME] on the basis of a [NAME] to commit an unlawful and dangerous act, but because of the verdict returned and the way both grounds were argued, that need not be pursued further.

11. Bearing in mind that it is not a subject of this ground, I set out the following at this stage for completeness only. Regarding count 5, the allegation against the applicant about the firing of the earlier shot at [NAME], the [NAME] was directed that the [NAME] needed to prove beyond reasonable doubt that [NAME] shot at [NAME]; that he did so with intent to kill him; and that that act was not done in self-defence or in defence of another.

12. Regarding all persons (apart from the alleged shooter) accused of that offence, the [NAME] was referred to the written directions about [NAME]. As with count 4, count 5 was also left to the [NAME] in two ways: basic [NAME] and extended [NAME].

13. Regarding basic [NAME] for count 5, it was explained that the [NAME] needed to prove, beyond reasonable doubt: the existence of a [NAME] on the date in question to kill [NAME]; that the accused was a participant in the [NAME]; and that between them, the accused persons committed all of the elements of attempted murder, as previously explained.

14. Finally, regarding extended [NAME] for count 5, the [NAME] was directed that the [NAME] needed to prove "the existence of a [NAME] on the date in question "to intimidate [NAME] by use of a loaded firearm"; that the accused was a participant in the [NAME]; that [NAME] committed all of the elements of the offence, as previously explained; that "the accused foresaw (or realised) that there was a real (not remote) possibility that one of the participants might shoot at [[NAME]] with intent to kill him, and otherwise than in self-defence"; and that the accused continued to participate in that [NAME] with that foresight or that realisation.

15. Focusing as this ground does on count 4, the murder, and reflecting upon the written directions, it can be seen immediately that they did not require any state of mind of the applicant pertaining to grievous bodily harm to, or the death of, [NAME], the man who was actually fatally shot. The written directions permitted the [NAME] to return a verdict of guilty of murder of [NAME] against the applicant, so long as the [NAME] was satisfied of proof of the necessary basic [NAME] or extended [NAME] pertaining to offences agreed to be committed against [NAME].

16. The oral directions provided to the [NAME] in the summing-up were in strict accordance with all of the above, and therefore do not require repetition here.

17. Having retired on 17 November 2020, the [NAME] asked two written questions on 20 November: (1) In the [NAME] document can you please clarify in count 4, point 3C (page 3), who does the intention to kill need to be directed at, [NAME], or anybody? (2) Can you please clarify when we can consider the verdict of manslaughter? 1. The second question and its answer are irrelevant to both grounds as argued, and will not be discussed further.

2. The [NAME]'s mention of "point 3C (page 3)" referred to the written directions prepared by [NAME] (MFI 87), namely those relating to the elements for count 4, the murder. Element, or "point", 3C provided that the act causing the deceased's death must have been done "with an intention to kill or an intention to inflict grievous bodily harm".

3. It was proposed to counsel by [NAME] that the [NAME] be redirected in the following way: In relation to the first question, the answer is that what needs to be proved beyond reasonable doubt is that there was an intention to kill a person or an intention to inflict grievous bodily harm on a person. It is not necessary that it be a particular person. Applying that direction to the facts of this case, if the gun was discharged with an intention to kill [NAME], but [NAME] was killed, that is sufficient to establish the specific intention required for the charge of murder. So that element (3)(c), as you have identified it in the [NAME] document, does not require proof of the intended target. However, when you look to the next paragraph, that is paragraph 3(d), you will see that the act must be done in furtherance of the [NAME] to kill [NAME]. That is because the [NAME] that the [NAME] relies on is an alleged [NAME] to kill a particular person, [NAME]. If you are not satisfied of that fact, the foundation of the [NAME]'s case based on [NAME] falls down or falls away. There may be cases where the identification of the target is not known or may not need to be proved, but that is not this case. The only case the [NAME] puts is that the [NAME] it alleges was based on an alleged contract to kill [NAME] and it was a [NAME] to kill [NAME]. (emphasis added)

1. All counsel agreed with the proposed answer to the first question. No objections or criticisms or suggestions for improvement were made, with the result that [NAME] duly directed the [NAME] as foreshadowed.

2. The submission made in this Court for the applicant is that that approach of the learned trial judge was fundamentally legally wrong, with the result that a miscarriage of justice has occurred.

3. To expand on that a little at this stage: it was fundamentally contended that the redirections failed to instruct that the killing, or infliction of serious bodily harm, to someone other than the intended target had to be foreseen by the applicant, in order for him to be liable for the murder on the basis of [NAME]. Nothing was said by the trial judge regarding the putative substantive requirement for the applicant's liability, namely that the deceased's killing or serious injury was either agreed to, or contemplated as a possible incident of the execution of their agreement. This, it was submitted, was an error; the [NAME] were led to believe that the applicant could be liable for murder merely if there was an agreement to kill [NAME], coupled with the killing of the deceased.

Written submissions for the applicant 1. The submissions in writing made clear that the applicant does not deny the existence of the doctrine of transferred malice, or any other legal path, whereby the shooter, [NAME], could be convicted of the murder of [NAME], even though he was in fact allegedly attempting to kill [NAME].

2. The submission was more tightly focused than that. It was that ideas to do with transferred malice cannot be applied to a person who entered into a [NAME] but was not the person who committed the physical elements of the offence (hereafter, "the non-actor"). In other words, transferred malice and the like only go so far: in this case, it certainly attaches to the shooter (hereafter, "the actor"), but no one else within the [NAME]. The focus needs to be upon whether the offence actually committed (that is, the murder of [NAME]) was part of the common design and agreement to it by the applicant (basic [NAME]), or foreseen as a possibility by the applicant (extended [NAME]). And even on the [NAME] case, there was no evidence that the death of [NAME] was agreed to, or foreseen as possible, by the applicant: [redacted]

3. On that simple premise, it was said that there had been a miscarriage of justice, because the applicant had been convicted of murder on a wrongful legal basis.

4. The error was compounded, it was said, by the further directions in response to the [NAME] note, which showed their obvious focus upon the issue.

5. What the [NAME] should have been told, the submission ran, was that, in order to be guilty by way of basic [NAME], the applicant would have needed to have agreed to killing or inflicting really serious harm upon [NAME]; or that, in order to be guilty by way of extended [NAME], the applicant would have needed to have foreseen the possibility of the death of the same person (or at least really serious physical injury to him) in the course of the agreed commission of the lesser offence of intimidation against [NAME].

6. The submission was that, at the least, the [NAME] should have been told that, for extended [NAME], it needed to be proven that the applicant had foreseen the possibility of that kind of harm to someone other than [NAME], without foresight perhaps of the specific identity of that other person.

Oral submissions of the applicant 1. Orally, it was said that whole [NAME] case was that a murder had been committed, but the intended target of it was not the person who was killed. That was said to raise doctrinal questions about the liability of non-actors within a [NAME].

2. It was explicitly accepted that no such question arises about the guilt of the shooter, [NAME].

3. Bearing in mind that there was no evidence of a basic [NAME] to kill or seriously harm [NAME], the only way that the applicant could be guilty of his murder would have been by way of extended [NAME]. But there was no evidence that the applicant contemplated (fatal or serious) harm to [NAME] as a possible incident of the enactment of the agreement to kill [NAME].

4. It was said that no authority can be found whereby the doctrine of transferred malice can be applied by extension to a non-actor in a [NAME].

5. It seemed to be accepted for the applicant that, on this thesis, if there existed a [NAME] to murder proven to the criminal standard against a number of persons, but the "wrong" individual was killed, and on the evidence the [NAME] could not discern which of two or more persons was the person or persons who committed the physical elements, then all would need to be acquitted, because transferred malice could apply to none of them, there being a reasonable possibility that each was a non-actor.

6. To the extent that the [NAME] relied upon the bald terms of s 18 of the Crimes Act 1900 (NSW) for the proposition that, quite apart from transferred malice, the statutory form of murder requires no congruence between the person intended to be killed (or otherwise the focus of a necessary mental element for murder) and the person who actually was killed, the following submission was made by way of emphasis only. The applicant did not deny that the shooter was guilty of murder, whether by way of transferred malice, statutory interpretation of the offence-creating provision, or any other pathway to guilt that encompasses the situation here. But the issue here is whether a non-actor within a [NAME] is guilty of murder in the circumstances.

7. Senior counsel for the applicant was asked by the [NAME] to reflect on the following example. Two persons agree to break into a home in order to steal valuables. They are aware that an old woman lives there. The two perpetrators either agree that she is to be bashed (basic [NAME]), or each individually foresee the possibility of that occurring during the break, enter and steal (extended [NAME]). One perpetrator enters, the other is the lookout. In fact, the [NAME] of the homeowner is present, his sister having gone out for the evening. The brother is bashed by the offender who enters. Is the thesis for the applicant that the lookout – the non-actor – is not guilty of any offence of violence, because the "wrong person" was bashed? 8. At first, the answer of senior counsel was in the affirmative: the lookout would be exculpated. Later, it was said to depend "on the way that the [NAME] puts its case", in that the "other crime that occurs" could be defined "in a general enough way to pick up what occurred without necessarily having to identify the specific victim". Applying that thinking to this trial: it could have been alleged by the [NAME] that the applicant and his confederates went to the home "with an intention to kill [NAME] and anyone else who got in the way", or "with an intention to kill [NAME] and any of [NAME]'s associates who were present". But the point was emphasised that nothing like that was placed before the [NAME] at any stage.

9. The further direction in answer to the question from the [NAME] simply compounded the error, it was said, because, despite the obvious focus on this issue by the [NAME], they were never told that they needed to be satisfied to the criminal standard that the applicant contemplated the killing of [NAME].

10. In short, regarding liability for murder of the applicant, the bar was erroneously lowered, especially regarding extended [NAME]. Because that was a possible basis upon which at least some of the jurors found the applicant guilty of the murder count, there is a distinct possibility that he was wrongly convicted.

11. As for Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), it was accepted that counsel at first instance was content with the legal formulation now impugned. But it was submitted that this legal error is so fundamental that that contentment could not stand in the way of its correction, by way of the conviction being quashed and a new trial being ordered.

12. In reply, it was accepted that, for a quarter of a century, it has been established that the liability of a non-actor in (at least a basic) [NAME] is primary. But the point was made that the elements of [NAME] require satisfaction to the criminal standard; here, there was no evidence whatsoever that the applicant agreed to, or foresaw the possibility of, the death of [NAME].

Determination of ground one 1. In my opinion, this ground must be rejected, for the following reasons, in general conformity with the submissions for the [NAME].

2. First, as I have shown, the applicant did not deny the existence of transferred malice as a longstanding feature of Anglo-Australian criminal law. That was correct: its application was explained as long ago as in The Queen v [NAME] at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473 in England, and mentioned as recently as in R v Wilio [2022] VSC 86 in Australia.

3. Nor did he deny the availability of a reading of s 18 of the Crimes Act 1900 that does not require congruence between the person the object of the mental element for murder, and the person actually the object of the act causing death. In my opinion, that was also correct: see Royall v R (1991) 172 CLR 378 at 393, 401; [1991] HCA 27.

4. To repeat: the attack was not upon the liability of the actor by way of those pathways, but rather the liability of the non-actor, in the person of the applicant.

5. What was incorrect, with respect, was the proposition that there is no authority for the inculpation of the non-actor in a [NAME] in the circumstances here. Relatedly, the minimisation of the importance of the propositions that the liability of the non-actor is either primary (in the case of basic [NAME]) or derives from that of the actor (in the case of extended [NAME]) was also erroneous.

6. The most recent taxonomy provided by this Court pertaining to the two forms of [NAME] is to be found in Batak v R [2024] NSWCCA 66 at [88]-[93]. That analysis is in turn based upon that to be found in Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 at [61], and of course I have applied it here.

7. Considering the first basis of the [NAME] case against the applicant, basic [NAME], the liability of the applicant for the murder was primary. So much has been understood for a quarter of a century, since the judgment of McHugh J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316. That meant that his inculpation did not stand or fall upon that of the shooter; indeed, the putative acquittal of the latter by the [NAME] in this trial would have been irrelevant to whether the applicant could be found guilty by the same [NAME].

8. As I have shown above, there was no "frontal assault" on transferred malice and like ideas. In other words, there was no disputing the correctness of the conviction of the shooter, even though it was quite clear that, on the [NAME] case, the "wrong" man had been killed.

9. But if it be the case that transferred malice is applicable in the circumstances, and if it be the case that the applicant allegedly bore primary liability, whereby the criminal law imbued the applicant with (at the least) the physical acts of the shooter, it is very difficult to see how anything more was required to be proven against him, above and beyond the explanation of the elements of the offence of murder, and the explanation of basic [NAME]. Each of those was, with respect, impeccable.

10. In short: I do not consider that the argument of the applicant is available in the context of basic [NAME].

11. Turning to the second leg of the [NAME] case, extended [NAME], as I have said, the liability of the applicant pursuant to that doctrine has been clarified now to be derivative: see Batak v R at [92]; referring to [NAME] v [NAME] at [61]. That meant that the [NAME] in this trial needed to be satisfied beyond reasonable doubt of the guilt of the shooter, before it could return a verdict of guilty against the applicant.

12. The derivative nature of the liability of the applicant pursuant to this doctrine, it patently not being based upon agreement, meant that the applicant could "get the benefit" of any exculpatory matter pertaining to the shooter. So, for example (and leaving aside pathways to guilt based upon innocent agency and the like), if the shooter had been found to have been not criminally responsible due to a mental health impairment or cognitive impairment, or irrebuttably presumed to be incapable of committing an offence because he was under 10 years of age, then no liability could have been derived from that of the shooter and placed upon the shoulders of the applicant, and the latter would have been entitled to an acquittal as well.

13. So much may be accepted. But the analysis is nothing more than theoretical in this case: the objective reality is that the shooter was found guilty by the same [NAME], and it is conceded that transferred malice and the like was a valid basis for that to occur.

14. To express that another way: if transferred malice as a doctrine of liability uncontroversially applied to the shooter, and the liability of the [NAME] was derived from that of the shooter, I cannot understand how it is that the [NAME] is entitled to be exculpated, when the shooter was found guilty, thereby demonstrating that the [NAME] was satisfied to the criminal standard of the guilt of the shooter of murder.

15. In short, my first basis for rejection of the thesis is that, whether one looks at things through the lens of primary liability in the context of basic [NAME], or derivative liability in the context of extended [NAME], I do not understand how it is that it is said that "something extra" needed to be proven against the applicant, above and beyond the orthodox elements of the offence of murder itself and the elements of those two forms of [NAME].

16. Secondly, I respectfully think that the absence of authority in support of the proposition for the applicant argues against it, not for it. The situation of the "wrong" person being killed or harmed, or the "wrong" home being invaded, or the "wrong" valuables being taken, or the "wrong" property being damaged, arises not infrequently in criminal law. Nor is it surely infrequently combined with [NAME], whether basic or extended. And yet senior counsel could find no authority from any common law jurisdiction that supported the "carveout" pertaining to the non-actor for which he contended.

17. Thirdly, in my opinion policy considerations argue powerfully against the thesis for the applicant. The two examples sketched above suggest that, in some circumstances, the thesis could work not only injustice, but almost absurdity. Speaking generally, the criminal law should strive for congruence between criminal liability and moral culpability, especially perhaps in the realm of complicity for murder and other grave offences: see [NAME] v [NAME] at [30], [46].

18. Indeed, the assessment that the thesis for the applicant could give rise to (at the least) injustice could be arrived at in this very case: regarding basic [NAME], a [COMPANY] agree to murder another man by shooting him; shots are fired; the target escapes with his life, but, in the murderous attempt, another man within the same premises is shot to death. Regarding extended [NAME], the target is to be intimidated by use of a loaded firearm, intention to kill or cause really serious physically injury on the part of the actor is foreseen by the applicant, and, in the course of all of that, another human being is killed by the discharge of that very firearm, by the very person who was originally armed with it.

19. On either formulation, it is difficult to see how it is appropriate for the applicant to be acquitted entirely, based on the simple caprice that the "wrong man" was "accidentally" shot to death.

20. Indeed, the admittedly appropriate conviction of the shooter in those circumstances arguably adds to the caprice, rather than detracting from it, bearing in mind that the whole idea of [NAME] in either of its forms is that the non-actor ends up being just as criminally liable as the actor for the wrongful acts of the latter.

21. Fourthly and finally, the seemingly lesser point made about how the [NAME] chose to put its case is also unpersuasive. The [NAME] case from start to finish was that there was a plan to commit an offence against [NAME] (that offence being murder for basic [NAME], and intimidation with a firearm for extended [NAME]), and, as it happened, the result of the execution of that plan was that the life of [NAME] was brought to an end. Because ideas about transferred malice applied just as much to the applicant as they did to the shooter, nothing more needed to be said by the [NAME] about the bases for his inculpation, including anything to the effect that the applicant foresaw harm to another person, named or not. In other words, in my opinion this was more of a procedural complaint ancillary to the substantive thesis, rather than a separate argument.

22. In short, in my opinion, the position adopted by counsel for the applicant at trial of contentment with the written and oral directions, and the answer to the [NAME] question, was correct. Because of the importance of the point, I would grant leave to argue the ground, but dismiss it.

Ground two: The verdicts of guilty are unreasonable. 1. In contrast to ground one, this ground requires a detailed consideration of the evidence regarding both counts 4 and 5: the murder of [NAME], and the shooting at [NAME] with intent to murder him.

Evidence in the trial 1. Almost every civilian who gave evidence in the trial was involved with prohibited drugs, either as a user, a dealer, or both. [NAME] witnesses were persons whose credibility could be readily impugned, either because of their indirect involvement in the murder, or their criminality generally; or the fact that charges and sentences had been reduced in return for them giving evidence; or their giving evidence with the protection of a certificate against self-incrimination, or their giving evidence after having refreshed their memories from a previous statement, or after a successful application to cross-examine them by the [NAME]; or their intoxication with drugs during and after the events of which they gave evidence; or their delay or reluctance in speaking to the police; or their many changes in position about what had actually happened.

2. The [NAME] case in a nutshell was as follows. 3. [NAME] and [NAME] were significant drug dealers. [NAME] "ripped them off" in the sum of many tens of thousands of dollars. The two aggrieved parties sought redress by taking out a contract on the life of [NAME].

4. The applicant and [NAME] were flatmates, and the applicant and [NAME] and [NAME] were friends. [NAME] was the boyfriend of [NAME].

5. In October 2016, the applicant spoke to his then-girlfriend, [NAME], about [NAME] in derogatory terms. He said words to the effect that [NAME] owed many people money and that he "grabbed other people's drugs, tricked other people to get some money". 6. [NAME] accepted the contract to murder [NAME]. [NAME] "subcontracted" the murder to [NAME], who was to carry it out on behalf of [NAME].

7. Separately, [NAME] was the occupant of the premises at Guildford, which were a home but also a makeshift [NAME], and often referred to in the trial as "the [NAME]". He was a drug dealer, suffered from schizophrenia, and was a person not to be trifled with. 8. [NAME] had been an employee of [NAME] in drug dealing. The carer of [NAME] was [NAME], who had his own physical health problem in the form of type 1 diabetes. 9. [NAME] was incarcerated up until 31 January 2017. During that time, [NAME] had access to the home. He did not look after it, and indeed stole some items from it. On his release, [NAME] was very angry with [NAME].

10. On 23 January 2017, [NAME] and [NAME] attempted to murder [NAME] by shooting him whilst he was in a car with his friend [NAME] at Kingsgrove. They missed, as confirmed by a text message later received by [NAME] that read simply "ha ha ha ha".

11. About six weeks later, on the evening of 1 February 2017 between 7.22 PM and 8.41 PM, [NAME] supplied two firearms to [NAME], and the applicant. The girlfriend of [NAME] (a pseudonym), was present for part of that event. CCTV product from an elevator was said to be powerfully supportive of it.

12. On the same evening, [NAME] was present at the [NAME], along with his friend [NAME], and [NAME]. [NAME] was also present.

13. To expand on that a little: a pizza delivery was ordered at 9:08 PM, and dispatched to the [NAME] at 9:35 PM, although its time of arrival could not be established with certainty. The delivery of the pizza occurred before the arrival of [NAME].

14. A data session on the mobile phone of [NAME] began at 8:49 PM and ended at 9.43 PM. His phone was not used after that time. That corroborated the evidence of [NAME] that he had been using an online map at that time in order to find the [NAME], and supported the [NAME] proposition that he had arrived sometime around 9:43 PM. 15. [NAME] telephoned [NAME] at 10.01 PM for 28 seconds to inform him of the presence of [NAME] (a prior [NAME] thesis that [NAME] had provided information at an earlier time about the expected presence of [NAME] later was disallowed by [NAME] as speculative).

16. Soon after that phone call, there was a great deal of telephone and text contact between the applicant, [NAME], and [NAME].

17. At 10:04 PM, the motor vehicle of [NAME], containing him and [NAME], departed [NAME] on its way to Guildford.

18. At 10:07 PM, the mobile telephone of [NAME], without it being used at that time, "pinged" from a tower that suggested that it was in Guildford or its vicinity.

19. At 10:18 PM, [NAME] left his apartment. The applicant subsequently collected him in his motor vehicle.

20. The applicant, [NAME], and [NAME] drove in the two separate vehicles to the [NAME], all of them intending to murder [NAME] (basic [NAME]), or at the least intending to intimidate him with a loaded firearm, with the applicant possessing the necessary foresight of possibilities (as discussed in my analysis of ground one) for murder (extended [NAME]).

21. The applicant drove his own vehicle there, a gold Toyota Prado. He was dressed in white or light-coloured clothes. [NAME], who was to become the shooter, travelled to the location with the applicant. He possessed a handgun throughout the journey. 22. [NAME] and [NAME] entered the [NAME], with the applicant remaining outside. A melee developed, during which [NAME] fired a number of shots in an effort to kill [NAME]. As discussed regarding ground one, one of them fatally wounded [NAME]. At some stage, [NAME] suffered an accidental gunshot wound to the leg.

23. Thereafter, all three men – that is, including the applicant – either entered the [NAME] or were at its perimeter. All were armed. That was in an effort to complete the contract by shooting [NAME]. Specifically, the applicant stood at the back door, armed with a handgun. 24. [NAME] and [NAME] each telephoned 000 at the time of the second attempt, and the recordings of those telephone calls were tendered in the trial. They each contemporaneously described the third man as being armed.

25. To provide more detail about that: the first call was made by [NAME], at approximately 11:07 PM. He spoke of a man having been shot at his place, and asked for an ambulance and other assistance. At about 2 minutes 40 seconds into the call, a man could be heard in the background speaking in Mandarin, asking for calm, saying that the police had already been called, and that "You guys should leave immediately". A little later, [NAME] said "Coming in the back, coming in the back", and "They back now, come on hurry up, three cunts, hurry up", and "I fear for our lives" (AB 287). He spoke of three men that "came back", "With all guns, they all came with them". Seconds later, he indicated that the men had left. 26. [NAME] rang 000 back at about 11.15 PM. He repeated that "the gunmen left and then came back with more people and more guns". A little later, [NAME] came on the line and said to the operator that "Three gunmen come in" (AB 303), which [NAME] repeated.

27. By that stage, the three men had departed. Quite soon after the shooting, the applicant made a number of telephone calls to his friend [NAME], the first of them being at 11:40 PM. In the early hours of the following morning, they met at Ashfield, and the applicant asked [NAME] to hide a bag containing at least one firearm at the premises of [NAME].

28. On the same day, 2 February, the Applicant also had contact with another female friend, [NAME], in that they ensured that some mobile phones were thrown in a river in the suburbs of Sydney, and the motor vehicle of the applicant was professionally cleaned inside and out to remove "gunpowder". He had originally texted her at about 2 AM on 2 February, asking her to come to Ashfield urgently.

29. The applicant made an admission at some stage to his then girlfriend, [NAME], to the effect that he had stayed outside in a car when the other two men entered the premises. Having heard a gunshot, he walked towards the house, but did not enter, and stayed on the doorstep.

30. He had also said inculpatory things to [NAME], commencing with her arrival at the home of [NAME] at about 4 PM on 2 February 2017. At that stage he had said "We are go there to looking for [NAME] [[NAME]]". Furthermore, on the same day, he had made the laconic comment that "the one should die didn't die. The one shouldn't die end up dying."

31. There was evidence derived from surveillance devices and telephone intercepts that showed that the applicant was conscious of his guilt regarding the shooting, and that he was seeking to conceal it.

32. Finally, after the shootings, [NAME] and [NAME] stayed for a time with a [NAME] at her premises in Sans Souci.

33. No evidence was called in the trial by the applicant, and indeed by any other accused person.

Indictment and outcomes 1. I now turn to set out the counts faced by each accused person, and the verdicts on those counts, not only to provide an overview, but also because at least one of the verdicts of acquittal was relied upon by the applicant in this Court as relevant to the correct approach to ground two.

2. Count 1 alleged that, on 23 January 2017, [NAME] and [NAME] shot at [NAME] with intent to murder him. That was the allegation pertaining to the failed attempt at Kingsgrove. Both of them were found not guilty of this count.

3. Counts 2 and 3 each alleged that, on 1 February 2017, [NAME] supplied a firearm to [NAME], the applicant and [NAME]. He was found guilty of count 2, but not guilty of count 3.

4. Count 4 alleged that, on 1 February 2017, the murder of [NAME] had been committed by the applicant, [NAME], and [NAME], the latter on the basis that, pursuant to his assistance to [NAME] in the performance of the contract, he had made the telephone call alerting the others to the presence of [NAME] at the [NAME] with murderous intent. All three first-mentioned accused were found guilty; [NAME], however, was acquitted.

5. Count 5 alleged that on 1 February 2017, the same four men had shot at [NAME] with intent to murder him. That was based, as discussed, on a shot fired by [NAME] that missed its target and was otherwise harmless. Again, the first three accused were found guilty of this count, but [NAME] was acquitted.

6. Finally, count 6 alleged that, between 1 February and 5 February 2017, [NAME] had been an accessory after the fact to the murder of [NAME]. She was found not guilty of that count.

Position of applicant at trial 1. In order to make a proper assessment of the ground, it is necessary to understand the real issues in the trial. I consider that the most accessible way to set out the position of the applicant at trial, and the particular portions of the [NAME] case that were conceded on the one hand and firmly disputed on the other, is by summarising the final address of his counsel.

2. It was conceded that the applicant drove to the [NAME] on the crucial evening. But the point was made that the vehicle in which he did so was registered in his own name. And it was said that what happened at the [NAME] was "a chaotic and unexpected experience".

3. It was said that there was no direct evidence of the applicant having accepted any contract to murder [NAME].

4. It was emphasised that, even on the [NAME] case, the applicant was not inside the [NAME] when the two shootings occurred.

5. The [NAME] was asked to examine the state of mind of the applicant at that crucial time.

6. It was said that there was no dispute that [NAME] had indeed stolen a lot of items from [NAME], while the latter was incarcerated. [NAME] had told [NAME] about what [NAME] had been doing, but matters only came to a head upon the release of [NAME], on 31 January 2017.

7. In cross-examination of [NAME] by other counsel, the witness had accepted that it could have been at about 5.30 PM on 1 February 2017 that [NAME] had come to the [NAME]. [NAME] had shown [NAME] the state of the home of the former. [NAME] had said at the time that [NAME] was responsible, and had to "answer for it".

8. The point was made that phone calls between [NAME] and [NAME] at 6.16 and 6.21 PM that evening could very well have been about the displeasure of [NAME] with [NAME], not least because the [NAME] was known as a dangerous place.

9. It was accepted that, thereafter, [NAME] and the applicant had attended the apartment of [NAME]. It was submitted in effect that the [NAME] would not find that a "gun transaction" involving [NAME] had occurred on that occasion. It was accepted in contrast on behalf of the applicant that there had been a drug transaction, whereby [NAME] received some drugs in return for cash.

10. At 7:59 PM, [NAME] sent a text message to [NAME]. The submission was that [NAME] would have been well aware of its author, and that would have been confirmed by a further message at 8:49 PM. The point was made that there was contact from [NAME] to [NAME] after that, and the [NAME] was asked to infer that that was because of [NAME] being concerned about the state of mind of [NAME].

11. The point was made that [NAME] had spoken in her statement to police of a dinner plan between [NAME] and one of the other three men as having been cancelled, shortly before she and [NAME] left [NAME]'s apartment at 9:08 PM. If the [NAME] were to accept what she had said in her statement, the point was made that whatever it was that led to the cancellation of dinner occurred before the phone call at 10:01 PM from [NAME] to [NAME], which the [NAME] prosecutor had asked the [NAME] to infer was made in order to alert the three men to the presence of [NAME] at the [NAME].

12. The [NAME] was asked to infer on the basis of digital evidence that [NAME] was certainly not at the [NAME] at 9:33 PM. And yet [NAME] had digitally expressed an intention to attend the [NAME] well before then, at 9:08 PM. And there was no evidence that [NAME] had any knowledge that [NAME] would be coming to the [NAME] later. In other words, that early statement of intention by [NAME] suggested that the subsequent attendance of the three men had nothing to do with the presence of [NAME].

13. It was accepted that [NAME] had indeed telephoned [NAME] at 10:01 PM, but the content and purpose of the call was firmly disputed.

14. Emphasis was placed upon cross-examination by other counsel of [NAME] to the effect that he was indeed impatiently awaiting the arrival of [NAME] that evening.

15. It was accepted that, soon after the phone call from [NAME] to [NAME], there had been a number of attempts by the latter to contact the applicant, and [NAME].

16. It was also accepted that a Kia motor vehicle occupied by [NAME] and his romantic partner, [NAME], left [NAME] after that phone call.

17. The alternative hypothesis was placed before the [NAME]: the three men were in contact and gathering not in order to murder [NAME] at the [NAME], but rather so that [NAME] could confront the ire of [NAME], backed up by his two friends.

18. It was said that the Toyota Prado, driven by the applicant, did not leave [NAME] hurriedly; rather, he did not depart until 10:35 PM. The point was emphasised that the applicant drove his own motor vehicle, retained it after the shooting, took with him two mobile phones, and indeed was wearing light-coloured clothes, as opposed to something less noticeable.

19. The point was also made that [NAME] was an expected, indeed eagerly awaited, visitor; that was said to be hardly the best circumstance in which to commit a shooting murder, and survive it. Furthermore, [NAME] and [NAME] were heard speaking outside before they entered.

20. It was conceded that [NAME] had possessed a concealed handgun when he entered, but the [NAME] would readily find that [NAME] – the alleged contracting party – was, oddly, unarmed.

21. It was said that there was evidence that, at the very time of the entry of the two men, [NAME] and [NAME] had been expressing their negative opinions of [NAME]. That gave weight to the thesis that things had unfolded emotionally and chaotically, not as a result of a plan.

22. The point was made that [NAME] did not absent himself from the premises. That was said to destroy the thesis that he expected gunfire to break out, upon the arrival of the persons whom he had alerted to the presence of [NAME].

23. To the extent that the [NAME] case was that, at one stage, [NAME] pointed a pistol at the head of [NAME], the submission was made that that would have been the perfect time at which to fulfil the asserted contract by pulling the trigger.

24. The [NAME] was reminded that [NAME], the girlfriend of the applicant, had agreed in cross-examination that, when she had contact with the applicant after the shooting, he had said something to the effect of "how could I know they were carrying guns".

25. Counsel addressed the [NAME] proposition that, shortly after the shooting, the applicant went to the back door of the [NAME]. He referred to things that the applicant had said to others after the shooting, along with the contents of the 000 calls made by [NAME] and [NAME].

26. It was accepted that the applicant had indeed gone to the back door of the [NAME], after the shots have been fired, he having previously been not only outside but also further away from the premises.

27. It was accepted that [NAME], in the 000 call, had spoken of a return by three men, all armed. He clarified that "they looked in and they left".

28. It was confirmed that there was no dispute that, after the shooting, the applicant did indeed "come somewhere to the back door area and had somewhat of a look inside and… has then left".

29. What was firmly disputed was the evidence of [NAME] that the third man, not seen at the earlier stages, possessed a firearm at that stage. The following points were made: at the time of the 000 call, [NAME] was distracted by being in mortal danger; his focus was on getting help, not the details of what he saw; although [NAME] had "insisted" in the witness box that the man at the back door did indeed have a firearm, his view of the applicant may have been impeded; the (presumably glass) door was hardly sparkling clean; the lighting was poor; the observation was brief; [NAME] was suffering from low blood sugar levels at the time; and, finally, a screenshot of the applicant from earlier that evening showed him holding a wallet in his hand, and [NAME] could perhaps have mistaken that item for a firearm.

30. As for what [NAME] said about the topic of what he had said on the 000 call, his evidence was equivocal as to whether or not there was indeed a third person with a firearm, he having explained in the witness box that he had been very unwell at that time, and that the relevant lighting was very poor. He was not sure of the number of men who returned, and could not say with certainty that all three possessed firearms at that stage.

31. In short, the point was made that the [NAME] simply could not accept that, when he came to the back door after the shootings, the applicant was seen to be in possession of a firearm.

32. As for the aftermath of the shootings, it was accepted that there was phone contact between the applicant and his friend [NAME] before and after midnight that evening. The [NAME] would be entitled to accept that the applicant turned up at the home of [NAME] "about midnight". The point was made that he was an unexpected visitor, in support of the proposition that the shooting was unplanned. As for [NAME] giving evidence that the applicant had said "[W]e hit someone today", he had also said that "something went wrong", which could well mean that a death was neither intended nor foreseen.

33. The whole flavour of the interaction between the applicant and [NAME] was said to be as a result of an unexpected occurrence, not a plan to murder.

34. Emphasis was also placed on the evidence of [NAME] that the applicant had said words to the effect that he was waiting in the car when the other two men went inside, and that if he had been present "this event" would not have happened.

35. As for the bag left by the applicant with [NAME], counsel submitted that the evidence as to precisely how many firearms it contained was very unclear.

36. It was conceded that the applicant had left a bag with [NAME] for a time, but the submission was that one could not be satisfied that the bag contained more than two guns, perhaps not even that.

37. Counsel then turned to the departure of the applicant from the home of [NAME], and his arrival at the apartment of his girlfriend in Ashfield. It was conceded that, later, at 2:27 AM, the applicant sent a text message to [NAME], a friend of [NAME] and [NAME]. That was said to be an act of panic on his part, not anything arising from a plan to murder. The next day, when she attended, the applicant told her that both [NAME] and [NAME] were deceased, which simply showed that he himself was not aware what had taken place at the [NAME]. Indeed, if he did believe the next day that [NAME] had died, the [NAME] thesis that the three men had returned to the premises in order to fulfil the contract on the life of [NAME] was destroyed.

38. Various simplistic steps taken to hide the shooting by the applicant were said to be just as consistent with a chaotic, unexpected event as with something that had been planned. All of the [NAME] evidence about the conduct and statements of the applicant after the shooting was just as consistent with the defence thesis, as with the [NAME] thesis, it was submitted.

39. As for admissions allegedly made to various witnesses after the event, to the extent that [NAME] gave evidence that the applicant had said that he had gone inside looking for [NAME] at the beginning of the incident, that simply could not be correct. In any event, she agreed in cross-examination that the applicant had never told her that he had gone to the [NAME] looking for [NAME].

40. As for alleged admissions to [NAME] – that the three men had gone there looking for [NAME], and that "the one should die, didn't die, the one shouldn't die end up dying"- it was accepted that she did not resile from her evidence as [NAME] had done. But she did not make a statement about the events in question until October 2017; she had no written record or other material to assist her memory; she was a user of crystal methylamphetamine; she had spoken to others and read things about the event; the conversations in question were short; and she was speaking to the applicant in Mandarin, when her first language is Cantonese.

41. In the last part of his final address to the [NAME], counsel attacked the credibility of [NAME] on many bases, not least the fact that he was originally charged with the serious offence of being an accessory after the fact to murder, but after agreeing to give evidence and the application of various discounts, ended up being sentenced to a community corrections order, and not serving a day in gaol. But because of the approach that I take to the evidence of [NAME] in determining ground two, I shall not pause to summarise those submissions.

42. Counsel concluded that the presence of the three men at the [NAME] that evening was not to do with any planned execution of [NAME]. Rather, it was in response to the undoubted anger of [NAME], and his insistence that [NAME] attend in order to answer for his wrongdoings, topics about which [NAME] himself had given reliable evidence.

Submissions in this Court 1. The following submissions were made in writing in support of ground two.

2. It was said that the acquittals of [NAME] and [NAME] on count one, the alleged attempt to shoot [NAME] on 23 January 2017, call into question the credibility of [NAME] and [NAME], because their evidence was the main component of the [NAME] case for that count.

3. As for [NAME], it was said that the only evidence about a contract to murder [NAME] came from him. It was noted that the trial judge on sentence found that the evidence of [NAME] was effectively worthless.

4. It was also said that the evidence of [NAME] of the crucial evening was not consistent with CCTV evidence regarding the movement of the three men.

5. The evidence of [NAME] regarding statements of the applicant about the behaviour of [NAME] well before the shooting was also impugned: she did not make a statement until months later, in September 2017; by that stage she had read numerous newspaper and online articles, and had also spoken to [NAME]; her evidence was internally inconsistent; and it was possible that she had conflated her memory of what the applicant had told her with what other persons had said. It was also noted that the trial judge had given the [NAME] a warning about the potential unreliability of that witness.

6. As for the evidence of [NAME], a statement to police was made eight months after the shooting; she was a regular user of ice; there were no contemporaneous notes that could be provided to police, or used to refresh her memory; there were language problems, as placed before the [NAME] by counsel at first instance; and she could have been mistaken in her recollection, or misunderstanding what the applicant was saying. Again, the trial judge had warned the [NAME] about her evidence.

7. As for [NAME]'s evidence, again there were some inconsistencies and he was a regular user of ice.

8. Regarding the 10:01 PM call from [NAME] to [NAME], it was said that the evidence did not support the [NAME] thesis that the call was made to alert him to the presence of [NAME], so that he could be murdered, or at least intimidated with a loaded firearm. The alternative hypothesis regarding [NAME] enduring a confrontation with [NAME] was emphasised.

9. In fact, there was no reliable evidence to establish precisely when it was that [NAME] arrived at the [NAME]. It was the evidence of [NAME], and [NAME] that was relied upon by the [NAME] to establish that [NAME] was at the location when the phone call was made.

10. Counsel for the applicant also argued that the VLR data record for the mobile phone of [NAME] suggested that he had arrived at the location after 10:07 PM. In a nutshell, the submission was that [NAME] likely used his mobile to access the internet at 10:07 PM, before entering the [NAME]. There was no evidence from [NAME], or any other witness, that he had accessed the internet on his mobile once he was inside.

11. The final submission in writing for the applicant was that it was significant that, even on the [NAME] case, the applicant never entered the [NAME] that evening, at any stage.

12. In oral submissions, it was submitted that the alternative reasonable hypothesis consistent with innocence could not be excluded on the evidence.

13. In addressing a query from the [NAME] as to why the applicant would have stayed outside if the reason for his attendance was to "back up" his friend and flatmate [NAME] in the difficult personal meeting with [NAME] inside the premises, senior counsel simply submitted that his absence from the interior weighs in his favour, in that the applicant was undoubtedly not the shooter, and indeed knew nothing of the presence of [NAME]. The spontaneity of the heated confrontation, again on the [NAME] case, was also emphasised.

14. Even on the [NAME] case, [NAME] was mistaken about the timing of the crucial phone call: in truth it occurred at 10 PM, whereas the witness thought it was at 8 PM. But the submission was that that central mistake cast significant doubt upon all of the evidence of [NAME] about the evening in question. The point was made that his first statement to police (at least) was completely dishonest.

15. The point was made that, in truth, the 10:01 PM phone call was simply to inform [NAME] that the aggrieved [NAME] was impatiently waiting his arrival.

16. It was accepted that it could not be said that it was impossible for [NAME] to have been at the [NAME] at the time of that phone call; having said that, the "window of opportunity was exceedingly narrow", and the evidence for it was said to be very unclear and unsatisfactory.

17. The contingent position was that, even if that call was to do with the presence of [NAME], that by no means meant that the applicant was part of a [NAME] to commit an offence against him.

18. As for the laconic summary of the whole matter allegedly provided by the applicant to [NAME], the points were repeated about its unreliability: the late timing of its reporting to police; all of the media reporting about the matter; what other persons may have been saying to the witness; and so forth.

19. Finally, the point was made that the behaviour of the applicant after the shooting suggestive of a consciousness of guilt on his part could just as easily be explained by an appreciation that he had driven simultaneously with two friends to a suburban home; one of them had fatally shot an occupant of that home; and the whole situation was suffused with the supply of prohibited drugs, in which the applicant was implicated. In other words, the point was that the admitted behaviour of the applicant after the shooting was not particularly probative towards proving the precise state of mind on his part that needed to be established, at the moment when the two shots were discharged that underpinned the two counts of which he was convicted.

Determination of ground two 1. The following is the approach that I took to the legal aspects of answering this ground in the decision of Russell v R [2023] NSWCCA 196, with the agreement of Wilson and Sweeney JJ. I continue to apply those principles, and consider that the most recent discussion by this Court of them in Dawson v R [2024] NSWCCA 98 is not inconsistent with my established approach: Russell v R at [82]-[90]. The legal principles to be applied in resolving this ground of appeal arising from a verdict of a [NAME] were not the subject of controversy between the parties. They have been discussed many times by this Court, most recently in the decision of [NAME] v R [2023] NSWCCA 182 at [18] to [26] of the judgment of Leeming JA, with which Yehia and Weinstein JJ agreed. I respectfully adopt that very recent analysis, and provide the following summary of the principles that I have applied in accordance with it, not as any sort of gloss on what [NAME] has said, but merely for the convenience of the reader. First, the verdict of a [NAME] has "a special authority and legitimacy" within our system of criminal justice: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48], [NAME] v R at [18]. Secondly, this Court must "determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence": Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [7], [NAME] v R at [19]. Thirdly, even if the appellate court experiences a doubt, that is not the end of the matter, because if it were no deference would be paid to "the role of the [NAME] and the advantages it enjoyed in seeing the trial unfold": [NAME] v R at [20]. Having said that, "it is only where a [NAME]'s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred": M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494, [NAME] v R at [20]. The position remains that "the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the [NAME] to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen at 495, [NAME] v R at [21]. Furthermore, the advantage enjoyed by the tribunal of fact at trial will vary depending upon the form of the evidence adduced, and the nature of the issues at trial: [NAME] v The Queen at [17], [NAME] v R at [23]. To express my own understanding of that, by providing two extremes: at one end of the spectrum, a verdict founded upon a trial that consists entirely of undisputed circumstantial facts, about which little or no oral evidence was given, may be more liable to interference on this ground by a court of criminal appeal than, at the other extreme, a verdict founded upon a trial that called for the assessment of the credibility of very many witnesses about sharply disputed facts, including the accused. That is because, in the former case, the tribunal of fact has little advantage over the appellate court in having the trial unfold in the courtroom. Separately, it is not to be forgotten that what needs to be established by way of this ground to the satisfaction of an appellate court is "that a miscarriage of justice has occurred authorising and requiring its intervention": [NAME] v The Queen at [96], [NAME] v R at [24]. Finally, the appeal proceeds upon the assumption that the central [NAME] evidence "was assessed by the [NAME] to be credible and reliable". Still and all, this Court "examines the record" to see whether, nevertheless, it is "satisfied that the [NAME], acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt": Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], [NAME] v R at [25].

1. Turning to my assessment of the evidence for the purposes of the ground, I accept the proposition that the inculpatory evidence of most if not all of the civilian witnesses must be approached with care.

2. Secondly, although it was not said for the applicant that any legal prohibition arose against making any factual finding (for or against the applicant) that is contradicted by an acquittal of another person, as a matter of practicality I exercise significant caution in doing so.

3. Thirdly, because of the history of the proceedings pertaining to [NAME] that I have set out above, combined with the significant error on his part – even on the [NAME] case – about the timing of the important phone call from [NAME] to [NAME], I give his evidence minimal weight.

4. Finally, I did not understand it to be said for the applicant that any circumstantial fact relied upon by the [NAME] was an indispensable intermediate one, which required proof beyond reasonable doubt, as first discussed in Shepherd v R (1990) 170 CLR 573; [1990] HCA 56, and recently in a conviction appeal in this Court in Carbone v R (No 2) [2024] NSWCCA 7.

5. Having said all that, the ground is to be determined within the framework of the following undisputed matters.

6. The three men in question were close to each other.

7. On the evening of 1 February 2017, the three men engaged in a transaction with [NAME]. 8. [NAME] was at the [NAME] some time before or after 10 PM. He was certainly present when the three men arrived there. 9. [NAME] received a telephone call from a person present at the [NAME] at 10:01 PM.

10. Thereafter, there was significant contact between the three men.

11. The applicant and the subsequent shooter drove the distance to the [NAME] together. [NAME] drove there simultaneously, and they met up outside. 12. [NAME] and [NAME] entered the premises, the latter carrying a concealed handgun, which must have travelled there in the vehicle of the applicant or [NAME].

13. The applicant remained outside at that stage. I interpolate that that conceded fact, in my opinion, is contrary to the thesis that the applicant attended to "back up" his friend emotionally or physically in a difficult meeting with [NAME]. If the applicant was there for moral support, he provided none by being well away from the interior of the [NAME].

14. A number of shots were fired inside the premises.

15. Thereafter, the applicant attended at the back door of the premises. I interpolate again that, in my opinion, that conceded act of his is inconsistent with the thesis that, entirely unexpectedly, shots had been fired by at least one of his companions. If that were the case, and the applicant had no knowledge or belief that his companions were armed, one would have expected him to flee; at the least, to remain outside, away from the house.

16. Two persons contemporaneously told a 000 operator that three men returned to the home, and all of them were armed. [NAME] did so on a number of occasions, and [NAME] did so once.

17. Expressing my opinion again, and appreciating all of the criticisms that can be made of the evidence of those persons, including the subsequent prevarication in the witness box by [NAME] (although not [NAME]), that is very probative evidence that the applicant was indeed armed when he came to the back door. It would be a remarkable coincidence if both [NAME] and [NAME] were mistaken in their contemporaneous statements about what they could see. [NAME] made the claim more than once, and expressed no uncertainty about it. And any theory that the two men were lying, by agreement or spontaneously, at that stage of mortal danger can be put to one side.

18. That observation of the applicant at that stage very powerfully suggests that he had indeed been part of [NAME], and had not merely innocently attended this dangerous residence at around 11 o'clock in the evening.

19. Quite soon after the shooting, the applicant contacted [NAME] in order to secrete at least one firearm. That is far more consistent with the proposition that the applicant had been part of one or other necessary [NAME], as opposed to the shooting having occurred completely unexpectedly from his perspective. If that were the case, one might have expected him to have left the two men who had placed him in this intolerable position to fend for themselves, including, most crucially, disposing of the firearm or firearms – one of them discharged fatally – of which he had known nothing.

20. The same can be said about the steps subsequently taken by the applicant to conceal his involvement in the events of the evening: although they are open to a number of interpretations, the far more obvious one is that the applicant was trying to hide something in which he had indeed been criminally involved.

21. Separately, one must inevitably approach the many admissions that the applicant was alleged to have made to other persons after the event with significant caution. But in a circumstantial case such as this, none of the evidential components of the case (as opposed to the elements of the offences, of course) requires proof beyond reasonable doubt, and the evidence of each witness must be seen in the context of the evidence of all of the others.

22. In my opinion, seen in the context of the undisputed evidence, combined with the "000 evidence" that I believe was powerfully probative, and reflecting upon all of the alleged admissions individually and as a whole, I believe that the latter can play some inculpatory role. And it is to be recalled that although [NAME] prevaricated and resiled largely from her evidence incriminating the applicant, [NAME] did not.

23. Finally on this question of assessment of evidence, it is to be recalled that proof of guilt of either offence did not depend upon proof that the applicant had entered into a basic [NAME] to kill or really seriously physically harm [NAME]. As I have discussed, the [NAME] case on both counts could succeed on the basis of something less: an extended [NAME] merely to intimidate him with a firearm, along with necessary foresight of possibilities.

24. In short: I consider that it is established (to the indeterminate standard of proof that applies to circumstantial facts) that, when he attended at the back door of the [NAME] very shortly after the shooting, the applicant was armed with a handgun.

25. The establishment of that fact, when seen in the context of the undisputed facts that I have summarised, rules out the posited alternative rational hypothesis consistent with innocence.

26. Reflecting on that circumstantial factor established to my satisfaction, the evidence as a whole, and the criticisms of it made for the applicant at first instance and in this Court, I do not experience a reasonable doubt about the guilt of the applicant of either count. On the contrary, I think it was well open to the [NAME] to find the applicant guilty of each of these counts.

27. Contingently, if I am wrong in that assessment, and I should experience such a doubt, then I believe that any such doubt can be readily resolved by the unquestionable advantage of the [NAME] in assessing the credibility of very many of the witnesses in the trial (most importantly [NAME], but including [NAME], and [NAME]), bearing in mind the impossibility of trying to reconstruct the atmosphere of a trial during the evidence of many witnesses from a large number of pieces of paper filed in an appeal.

28. For those reasons, I would dismiss this ground.

Proposed orders 1. Because of the significance of both grounds, I think that leave to appeal should be granted to argue them. In accordance with my opinion that both grounds should be dismissed, I propose the following orders:

1. Leave to appeal against conviction granted.

2. Appeal dismissed.

1. McNAUGHTON J: I have had the benefit of reading the draft judgment of Button J. Having reviewed for myself the record of the trial, I agree for the reasons provided by [NAME] that the first ground should be rejected. I also agree that it was well open to the [NAME] to be satisfied beyond reasonable doubt that the accused was guilty, and ground 2 must fail. I agree with the orders proposed by Button J.

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Amendments 12 July 2024 - Appeal book references deleted from paragraphs 11, 24, 26, 27, 30, 31, 37, 96, 97, 111, 126, 138, 142, 150 and 168. 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: 12 July 2024