R v HOWELL; MITCHELL, RIGNEY, CARVER & TENHOOPEN v THE KING [2026] SASCA 71

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STEIN AND THE HONOURABLE JUSTICE MCINTYRE) SCCRM-20-24 Appellant/Respondent: THE KING Counsel: MR M HINTON KC WITH MR E SAKOULIDIS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: JASON PAUL HOWELL Counsel: MR D O’LEARY SC WITH MR W MICKAN - Solicitor: SHAW LEGAL & ADVISORY Appellant: BENJAMIN JOHN MITCHELL Counsel: MR A TOKLEY KC WITH MR G AITKEN - Solicitor: NOBLET & CO Appellant: ALFRED CLAUDE RIGNEY Counsel: MR S MCDONOUGH - Solicitor: NICK THOMSON LEGAL Appellant: AARON DONALD CARVER Counsel: DR J MARCUS - Solicitor: ACCESS TO JUSTICE LAW FIRM Appellant: MATT BERNARD TENHOOPEN Counsel: MR A REDFORD WITH MR O GREEVES - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 12/02/2026, 13/02/2026 File No/s: SCCRM-24-050667; SCCRM-25-030264; SCCRM-25-032580; SCCRM-25-034421; SCCRM-25- 040721 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. R v HOWELL; MITCHELL, RIGNEY, CARVER & TENHOOPEN v THE KING [2026] SASCA 71 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice B Doyle) 25 June 2026 CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIFFERENT VERDICTS FOR ACCUSED AND CO-ACCUSED CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - SCOPE OF AGREEMENT CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER -- 1 of 84 -- During the night of 5 October 2018, five men (Mr Howell, Mr Mitchell, Mr Rigney, Mr Carver and Mr Tenhoopen) travelled in two cars to a location in suburban Adelaide, and then walked together to a nearby house which was being used to grow cannabis. They had agreed with each other that they would steal a substantial amount of cannabis from this grow house. As they approached the grow house on foot, one of the men could be seen from CCTV footage to be carrying a long object, variously described as a stick, pole or bat. They broke into the grow house, where the deceased was present and guarding the cannabis. Whilst some of the men were stripping and bagging the cannabis, one or more of the men violently assaulted the deceased with at least one blow to his head, causing his death. The men loaded multiple bags of cannabis into the deceased’s car, which was in the driveway of the grow house, and left in that car. After returning to where they had left their cars, they drove to another location, where they transferred the cannabis into one of their own cars. They then drove in their cars to Murray Bridge, where they divided the cannabis amongst themselves. The men were all subsequently charged with murder, with the prosecution case against each encompassing allegations of both common law murder by reason of an extended joint criminal enterprise, and constructive murder by reason of a joint criminal enterprise. All defendants elected for trials by judge alone. Mr Howell was tried separately before Stein J, who acquitted him of murder but convicted him of manslaughter. The other defendants were jointly tried before McIntyre J, who found them all guilty of murder (by reason of a joint criminal enterprise to commit constructive murder). The Director of Public Prosecutions seeks permission to appeal Mr Howell’s acquittal, and the remaining defendants seek permission to appeal their convictions. The Director’s proposed appeal raises complaints challenging the judge’s approach and conclusions in relation to the scope of the agreement or joint criminal enterprise to which Mr Howell was party. In particular, he challenges Stein J’s conclusion to the effect that Mr Howell agreed only to violence for the purpose of subduing the deceased, and did not agree to the possibility violence ‘of the same general nature’ as that which occurred and caused death. The defendants’ proposed appeals raise a number of overlapping grounds, including complaints to the effect that their verdicts of guilty were unreasonable by reason, inter alia, that there was no basis in the evidence to find that the item seen in the CCTV footage was used to kill the deceased, that the agreement between the defendants did not extend to the possibility of violence of ‘the same general nature’ as that which occurred and caused death, and that the agreement was no longer on foot when the deceased was killed. It was also argued that the verdicts were inconsistent with: McIntyre J’s own rejection of the prosecution case on common law murder on the basis that it had not been proved that the defendants foresaw that one of their number might use a weapon to assault an occupant of the grow house with an intention to cause death or grievous bodily harm; and / or Stein J’s acquittal of Mr Howell on the basis that it had not been proved that he agreed to the possibility of violence of ‘the same general nature’ as that which occurred and caused death. The defendants also raised several specific complaints relating to McIntyre J’s treatment of certain aspects of the evidence, as well as a general complaint about the adequacy of her reasons. On the Director’s appeal against Mr Howell’s acquittal: Held (per S Doyle JA, Livesey P and B Doyle AJA agreeing) granting permission to appeal but dismissing the appeal: 1. The judge adequately addressed the prosecution’s second pathway to guilt, namely constructive murder by reason of a joint criminal enterprise. -- 2 of 84 -- 2. The requirement that the defendant agree the possibility of violence of ‘the same general nature’ as that which occurred and caused death is merely an aspect of the scope of the agreement founding liability for joint criminal enterprise. 3. No error of principle has been established in Stein J’s conclusion that the prosecution failed to establish that Mr Howell agreed to the possibility of violence other than for the purpose of subduing any occupant of the grow house, and hence did not agree violence of ‘the same general nature’ as that which occurred and caused death. 4. The judge’s factual finding to this effect was at least reasonably open, and any error in this respect would not, in any event, be a proper basis for this Court’s intervention on a Crown appeal. 5. The Director’s appeal raises issues of principle of sufficient general importance that there should be a grant of permission to appeal. However, no error of principle, or other error appropriate for this Court’s intervention has been established and the appeal should be dismissed. On the appeals by Mr Mitchell, Mr Rigney, Mr Carver and Mr Tenhoopen: Held (per S Doyle JA, Livesey P and B Doyle AJA agreeing) granting permission to appeal but dismissing the appeals: 1. The various contentions to the effect that McIntyre J’s verdicts of guilty of constructive murder by reason of a joint criminal enterprise have not been made out. 2. It was established that the defendants agreed to the possibility of violence using the item that one of them was seen holding in the CCTV footage. 3. The agreement between the defendants was still on foot at the time of the fatal blow or blows. 4. There was no relevant inconsistency with McIntyre J’s rejection of the prosecution case of common law murder by reason of extended joint criminal enterprise. 5. The challenges made to the judge’s treatment of certain aspects of the evidence, and to the adequacy of her reasons more generally, have not been made out. 6. The judge’s conclusion that the defendants agreed to the possibility of violence of the same general nature as that which occurred and caused death, and hence her verdicts of guilty of murder, were open. The verdicts are not unreasonable. 7. There is no relevant inconsistency between the verdicts of McIntyre J and Stein J given that they arose in different trials, with material differences in the evidence led at each. Crimes Act 1900 (NSW) s 18(1)(a); Criminal Law Consolidation Act 1935 (SA) ss 11, 12A, 137; Criminal Procedure Act 1921 (SA) s 157(1)(b)(i), referred to. Dansie v The Queen (2022) 274 CLR 651; M v The Queen (1994) 181 CLR 487; McAuliffe v The Queen (1995) 183 CLR 108; Mitchell v The King (2023) 276 CLR 299, applied. Allison (a pseudonym) v The King [2025] SASCA 33; Alzuain v The King [2025] SASCA 67; Arulthilakan v The Queen (2003) 78 ALJR 257; Batak v The King (2024) 114 NSWLR 313; DL v The Queen (2018) 266 CLR 1; Edmonds v The Queen [2012] 2 NZLR 445; Fitzgerald v The Queen (2014) 88 ALJR 779; Huynh v The Queen (2013) 87 ALJR 434; IL v The Queen (2017) 262 CLR 268; Likiardopoulos v The Queen (2012) 247 CLR 265; MacKenzie v The Queen (1996) 190 CLR 346; MFA v The Queen (2002) 213 CLR 606; Miller v The Queen (2016) 259 CLR 380; Nguyen v The Queen (2020) 260 CLR 299; Pell v The Queen (2020) 268 CLR 123; Pollitt v The Queen (1992) 174 CLR 558; R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118; R v Appleby (1940) 28 Cr App R 1; R v Baden-Clay (2016) 258 CLR 308; R v Betts (1930) 22 Cr App R 148; R v Coskun (2024) 114 NSWLR 374; R v DJD (2023) 111 NSWLR 193; R v Donovan [2025] SASCA 7; R v Dowdle (1900) 26 VLR 637; R v Fitzgerald (2023) 307 A Crim R 101; R v H, GJ (2008) 102 SASR 82; R v Hillier (2007) 228 CLR 618; R v Kalinowski (1930) 31 SR (NSW) 377; R v Neocleous (2017) 270 A Crim -- 3 of 84 -- R 262; R v Powell [1991] 1 AC 1; R v Rahman [2009] 1 AC 129; R v Shannon [1975] AC 717; R v Solomon [1959] Qd R 123, considered. -- 4 of 84 -- R v HOWELL; MITCHELL, RIGNEY, CARVER & TENHOOPEN v THE KING [2026] SASCA 71 Court of Appeal – Criminal: Livesey P, S Doyle JA and B Doyle AJA LIVESEY P AND B DOYLE AJA: Introduction 1 These appeals follow two trials by judge alone. In the first, the defendant Mr Howell was acquitted of murder but convicted of manslaughter.1 In the second, the defendants Mr Mitchell, Mr Rigney, Mr Carver and Mr Tenhoopen, were convicted of murder.2 The prosecution appealed Mr Howell’s acquittal and the other defendants appealed their convictions. All require permission to appeal. Both trials addressed similar, but not identical, facts concerning the death of Mr Gjabri from blunt force trauma to the head, after the defendants forcibly entered a marijuana ‘grow house’ he was guarding. The evidence showed that one of the defendants was carrying a long object. The arguments about criminal liability of the defendants under the principles concerning joint criminal enterprise, extended joint criminal enterprise and constructive murder largely turned on matters of inference. 2 For the reasons given by S Doyle JA, in each appeal permission should be granted but the appeal dismissed. Different trials, different outcomes 3 The effect is that, on similar facts, criminal liability has been decided differently concerning the same homicide in each trial. Whilst this might be thought to involve some tension, that is explained by two differences between these trials. The first is that the evidence and the way in which it was presented and argued was not the same. Secondly, and more importantly, the trials were heard by different triers of fact. Whilst in many cases the factual findings that might be made, and the inferences and conclusions drawn, on the same evidence may be decided in the same way by different juries or judges, that proposition is far from immutable. 4 Where a particular trier of fact has been assigned responsibility to hear a trial, determine the facts and decide guilt, certain constraints aside, those are matters for that jury or judge and no other. As ‘the constitutional tribunal for deciding issues 1 R v JPH [2024] SASC 137 (Stein J, as her Honour then was). 2 R v Mitchell (No 3) [2025] SASC 118 (McIntyre J). -- 5 of 84 -- [2026] SASCA 71 Livesey P and B Doyle AJA 2 of fact’,3 that jury or judge will have room for decisional freedom.4 It will be for that jury or judge to decide the facts and return the verdict which they believe best accords with their oath and duty.5 5 The constraints on decisional freedom by a jury or judge when determining guilt include the obligation to decide the case on the evidence led and the arguments made in the case, to heed directions of law and the proper scope for appellate intervention. The jury or judge must decide the case according to law and its own view of the facts, for criminal liability must usually be decided at a trial by the jury or judge assigned to hear the case. 6 A familiar constraint on the trier of fact represented by appellate intervention concerns cases where the defendant contends that the verdict was unreasonable or not supported having regard to the evidence, under s 158(1)(a) of the Criminal Procedure Act 1921 (SA). It is for the appeal court to review the record for itself and consider whether it entertains a reasonable doubt about guilt. However, even in that setting it may be necessary for the appeal court to recognise and give deference to the decisions made by the trier of fact. That may be because the trier of fact has heard the evidence and decided the case with advantages that cannot be replicated on appeal, including because it may matter how the evidence was given or how the trial unfolded, whether before a jury,6 or a trial by judge alone.7 7 The room for decisional freedom is recognised by an appeal court with hindsight, by asking whether a finding or verdict was ‘open’ to the trier of fact. That is reflected by the appeal court considering whether, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that 3 R v Baden-Clay (2016) 258 CLR 308 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ), Hocking v Bell (1945) 71 CLR 430 at 440 (Latham CJ). See also Brennan v The King (1936) 55 CLR 253 at 266 (Dixon and Evatt JJ), Sparre v The King (1942) 66 CLR 149 at 154 (Starke J), Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 188 (Murphy J), Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 601 (Brennan J), MacKenzie v The Queen (1996) 190 CLR 348 at 365 (Gaudron, Gummow and Kirby JJ), MFA v The Queen (2002) 213 CLR 606 at [48] (McHugh, Gummow and Kirby JJ), Alzuain v The King [2025] SASCA 67 at [21]-[26] (Kourakis CJ, Livesey P and Bleby JA). 4 Which is to be distinguished from the way in which the term ‘the area of decisional freedom’ has been used in the very different administrative law context. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], French CJ referred to this as the area in which ‘reasonable minds may reach different conclusions about the correct or preferable decision’. 5 See, for example, in the case of jury verdicts in the same trial which might be thought inconsistent, MacKenzie v The Queen (1996) 190 CLR 348 at 364-368 (Gaudron, Gummow and Kirby JJ). 6 ‘It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred’: M v The Queen (1994) 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ). See SKA v The Queen (2011) 243 CLR 400 at [13] (French CJ, Gummow and Kiefel JJ). 7 Dansie v The Queen (2022) 274 CLR 651 at [8]-[10] (Gageler, Keane, Gordon, Steward and Gleeson JJ). -- 6 of 84 -- [2026] SASCA 71 Livesey P and B Doyle AJA 3 the accused was guilty,8 or ‘whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.9 8 Having reviewed the record and reasons with the benefit of the arguments made at the joint trial and on appeal, it was open to McIntyre J to be satisfied of guilt beyond reasonable doubt. The other challenges made by the defendants should be rejected for the reasons given by S Doyle JA and their appeals dismissed. The Director’s appeal against an acquittal 9 Similarly, a review of the record and reasons with the benefit of the Director’s arguments does not demonstrate that the acquittal and verdict concerning Mr Howell was affected by material error or was not open to Stein J. 10 In the case of a prosecution appeal against an acquittal, there are additional considerations bound up in the limited dispositive powers available to this Court, notwithstanding the ostensibly broad scope for an appeal ‘on any ground’ and, critically, the need to give consideration to double jeopardy principles having regard to the importance of an acquittal following a criminal trial, whether in connection with the requirement for permission or the exercise of the residual discretion.10 11 Whilst, ultimately, the Director has not established that Stein J’s reasons disclose any error of law, the submissions advanced by the Director canvassed questions of principle and general importance. It is therefore appropriate to grant permission to appeal against Mr Howell’s acquittal, notwithstanding the weight to be given to double jeopardy considerations.11 12 However, as S Doyle JA has observed, those considerations may also inform the nature and exercise of the Court’s jurisdiction in an appeal brought pursuant to s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA). 13 The nature of that jurisdiction is also informed by sub-ss 158(4) and 158(5), which enumerate and circumscribe this Court’s dispositive powers. Two aspects of those provisions may be noted. First, the powers are discretionary. In the exercise of discretion, it may be appropriate that double jeopardy considerations be brought to bear.12 Secondly, the Court’s dispositive powers where an acquittal 8 M v The Queen (1994) 181 CLR 487 at 492-493 (Mason CJ, Deane, Dawson and Toohey JJ), Jones v The Queen (1997) 191 CLR 439 at 450-451 (Gaudron, McHugh and Gummow JJ), MFA v The Queen (2002) 213 CLR 606 at [25] (Gleeson CJ, Hayne and Callinan JJ), SKA v The Queen (2011) 243 CLR 400 at [11] (French CJ, Gummow and Kiefel JJ), R v ZT (2025) 281 CLR 137 at [9]-[12] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), at [86]-[90] (Gordon, Edelman and Steward JJ). As for a trial by the judge alone under s 7(1) of the Juries Act 1927 (SA), see Dansie v The Queen (2022) 274 CLR 651. 9 Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing). 10 Recognised in cases such as R v Brougham (2015) 122 SASR 546 at [65]-[66] (Peek J, Gray and Nicholson JJ agreeing): ‘it will be necessary for the Court to also consider whether permission to appeal is warranted in all the circumstances and, even if it is, whether the appeal should nevertheless still be dismissed pursuant to the residual discretion connoted by the use of the term “may allow”’. 11 Criminal Procedure Act 1921 (SA), s 157(1)(b)(i). 12 R v Brougham (2015) 122 SASR 546 at [65] (Peek J, Gray and Nicholson JJ agreeing). -- 7 of 84 -- [2026] SASCA 71 Livesey P and B Doyle AJA 4 is to be quashed do not extend to the entering of a conviction, nor the giving of a direction to the court that is to retry the accused that the accused should be convicted.13 14 That limitation upon this Court’s dispositive powers may suggest that, whilst s 157(1)(b)(i) contemplates an appeal ‘on any ground’, and is not therefore limited to appeals concerning questions of law, the Court should be reluctant to intervene where the only basis upon which it might do so is a difference in opinion as to the ultimate inference to be drawn from the evidence, that is, on the basis of a disagreement as to the appropriate verdict. It is one thing to direct a retrial where an independent review establishes that the judge misapprehended the effect of important evidence, demonstrably erred in respect of an intermediate finding of fact that was material to the verdict, denied the parties procedural fairness or overlooked an important argument mounted by the prosecution so as to have provided inadequate reasons.14 It is another to do so merely on the basis that, on fine balance, the appeal court might form a different view as to the verdict that it would have entered. 15 If the Court were to direct a retrial in a case of that kind, it would leave a judge hearing the retrial in an invidious position. Supposing the evidence on the retrial is materially identical, will a verdict of acquittal inevitably be subject to the same challenge? If so, is the retrial a compromised exercise? If not, what purpose was served by ordering the retrial? These considerations may suggest that assuming, consistently with prevailing authority,15 the appeal is by way of ‘rehearing’, it is one the precise nature of which is heavily informed by matters of context.16 16 Whether these considerations go to the nature of the errors that may warrant intervention or manifest only in the exercise of a residual discretion need not be resolved. Even if this Court was to conclude that based on an independent assessment of the evidence it is persuaded beyond reasonable doubt that the scope of any agreement extended to the carrying out of a strike of the same general nature as the fatal blow(s), this conclusion would be reached on relatively fine balance about a matter of fact, and without concluding that the judge’s verdict was unreasonable or perverse. 17 In circumstances where the consequence of quashing the conviction would be to subject Mr Howell to a third trial for murder, the prosecution appeal should be dismissed. 13 Criminal Procedure Act 1921 (SA), s 158(5)(b). 14 See R v Donovan [2025] SASCA 7 at [22]-[25] (Livesey P, Bleby and David JJA). 15 R v Fitzgerald (2023) 307 A Crim R 101 at [19] (Doyle, Bleby and David JJA), referring to the Joint Criminal Rules 2022 (SA), r 204.2(1). 16 cf. R v Donovan [2025] SASCA 7 at [29] (Livesey P, Bleby and David JJA), referring to the protean nature of the expression ‘appeal by way of rehearing’. -- 8 of 84 -- [2026] SASCA 71 Livesey P and B Doyle AJA 5 Conclusion 18 We agree with the orders proposed by S Doyle JA. -- 9 of 84 -- [2026] SASCA 71 S Doyle JA 6 19 S DOYLE JA: During the night of 8 October 2018, the defendants (Mr Howell, Mr Mitchell, Mr Rigney, Mr Carver and Mr Tenhoopen) travelled in two cars to a location in Para Vista. They then walked together to a nearby house on Carousel Street which was being used to grow cannabis. They had agreed with each other that they would steal a substantial amount of cannabis from this grow house. 20 As they approached the grow house on foot, one of the defendants could be seen from CCTV footage to be carrying a long object, variously described as a stick, pole or bat. They broke into the house, where the deceased (Mr Gjabri) was present and guarding the cannabis. While some of the defendants were stripping and bagging the cannabis, one or more of the defendants violently assaulted Mr Gjabri with at least one blow to his head, causing his death. 21 The defendants loaded multiple bags of cannabis into the deceased’s car, which was in the driveway of the grow house, and then left in that car. They drove to where they had left their two cars, and then drove all three cars to a location on Gilbert Street, Ingle Vale, where they were observed transferring the cannabis from the deceased’s car to one of the other cars. They left that location in their two cars, and drove to Murray Bridge, where they divided the cannabis amongst themselves. 22 The defendants were all subsequently charged with murder, with the prosecution case against each encompassing allegations invoking the principles of joint criminal enterprise, extended joint criminal enterprise and constructive murder. 23 All defendants elected for trials by judge alone. Mr Howell was tried separately before Stein J, who acquitted him of murder but convicted him of manslaughter. The other defendants were jointly tried before McIntyre J, who found them all guilty of murder. 24 The prosecution seeks permission to appeal Mr Howell’s acquittal, and the other defendants seek permission to appeal their convictions. The proposed appeals raise a range of overlapping issues, including in relation to the operation of the principles governing joint criminal enterprise, extended joint criminal enterprise and constructive murder. However, as the evidence and forensic contests differed between the two trials, and the grounds of appeal raise issues of fact, it is necessary to address the appeals separately. 25 For the reasons which follow, I would dismiss both appeals. 26 The Director’s appeal against Mr Howell’s acquittal raises some important issues of principle, particularly in relation to the requirement of liability for constructive murder pursuant to a joint criminal enterprise that the defendant agree the possibility of violence of ‘the same general nature’ as the intentional act of violence that caused the deceased’s death. It is appropriate that the Director have permission to appeal. However, having considered Stein J’s reasons closely, the -- 10 of 84 -- [2026] SASCA 71 S Doyle JA 7 Director has not identified any error of law or principle. To the extent that I have some reservations about her Honour’s ultimate conclusion as to the nature of violence that was agreed, this involves an issue of fact. In circumstances where her Honour’s conclusion was at least open on the evidence, I am not persuaded that this Court should intervene. 27 The appeals brought by the defendants in the joint trial before McIntyre J raise a number of issues. However, as I shall explain, none of the proposed grounds of appeal have been made out. There is a tension between McIntyre J’s conclusion that the defendants agreed the possibility of violence of the same general nature as that which caused Mr Gjabri’s death, and Stein J’s conclusion to the opposite effect in Mr Howell’s trial. However, there is no operative inconsistency in circumstances where there were separate trials and material differences in the evidence admissible against the various defendants. It has not been established that McIntrye J’s verdicts of guilty of constructive murder pursuant to a joint criminal enterprise were unreasonable. Nor have any of the defendants’ other complaints been made out. I would grant the defendants in the joint trial permission to appeal, but dismiss their appeals. 28 My reasons for these conclusions are structured as follows: PART A: SOME MATTERS OF GENERAL PRINCIPLE ...................................................... Common law murder ................................................................................................................ [30] Joint criminal enterprise ............................................................................................................ [32] Extended joint criminal enterprise ............................................................................................ [42] Constructive murder .................................................................................................................. [52] PART B: APPEAL IN HOWELL ................................................................................................ The trial ..................................................................................................................................... [59] The judge’s findings of fact ...................................................................................................... [67] The judge’s operative reasoning ............................................................................................... [87] Common law murder ............................................................................................................ [88] An agreement to steal cannabis ........................................................................................ [89] The scope of the agreement............................................................................................... [91] Participation in the enterprise .......................................................................................... [98] EJCE and the foresight of murder .................................................................................... [99] Conclusion on common law murder ............................................................................... [102] Constructive murder ............................................................................................................ [103] Manslaughter ....................................................................................................................... [109] Summary ............................................................................................................................. [113] The Director’s appeal .............................................................................................................. [118] The scope of the agreement – violence of ‘the same general nature’ ..................................... [128] Ground 1 – failure to properly consider the prosecution’s second pathway ........................... [170] Ground 2 – violence not of the same general nature that was agreed ..................................... [176] Ground 3 – adequacy of reasons ............................................................................................. [185] Conclusion .............................................................................................................................. [187] PART C: APPEAL IN MITCHELL, RIGNEY, CARVER & TENHOOPEN ........................ The trial ................................................................................................................................... [189] The defence cases.................................................................................................................... [194] The judge’s findings................................................................................................................ [195] The judge’s operative reasoning ............................................................................................. [208] -- 11 of 84 -- [2026] SASCA 71 S Doyle JA 8 The grounds of appeal ............................................................................................................. [218] Unreasonable verdict............................................................................................................... [219] Principles governing a complaint of unreasonable verdict ................................................ [222] An agreement to steal cannabis from the Carousel Street premises................................... [233] Each of the defendants participated in the joint criminal enterprise ................................. [236] The pole depicted in the CCTV footage was used to inflict the fatal blow(s) ..................... [239] Scope of the agreement encompassed the possible use of violence .................................... [248] Complaint of ‘no’ evidence for judge’s conclusions ........................................................... [253] Indispensable intermediate facts ......................................................................................... [256] Failure to exclude alternative hypotheses .......................................................................... [259] Verdicts not unreasonable .................................................................................................. [265] Agreement to use violence of the ‘same general nature’ ........................................................ [268] Inconsistency with rejection of extended joint criminal enterprise ........................................ [285] Agreement was still on foot when fatal blow was struck ....................................................... [294] Inadequate reasons .................................................................................................................. [311] Use of DNA evidence against Mitchell .................................................................................. [314] Other Tenhoopen grounds ....................................................................................................... [318] Conclusion .............................................................................................................................. [339] PART D: ORDERS ....................................................................................................................... PART A: SOME MATTERS OF GENERAL PRINCIPLE 29 Given the issues raised on appeal, it is appropriate to commence with some matters of general principle in relation to common law murder, joint criminal enterprise, extended joint criminal enterprise and constructive murder. Common law murder 30 Murder is a statutory offence under s 11 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). However, the elements of that offence reflect the common law offence of murder; namely, that a person, by a voluntary and deliberate act or acts, unlawfully caused the death of another person, and did so with the intention either to kill or cause grievous bodily harm (sometimes described as really serious bodily harm). Hence it remains common, and appropriate, to refer to a defendant’s liability for common law murder. 31 As will be seen, a defendant may be found guilty of common law murder through an application of the principles governing either a joint criminal enterprise or an extended joint criminal enterprise. However, when the pathway to guilt relied upon by the prosecution involves constructive murder, only the principles governing a joint criminal enterprise are applicable. Joint criminal enterprise 32 The doctrine of joint criminal enterprise, or JCE, is a means of establishing the liability of a defendant which is distinct from aiding, abetting, counselling or procuring. It operates where a defendant reaches an agreement with one or more other people to commit a crime and then, in accordance with their continuing agreement, one or more of the parties to that agreement does, or they do between them, all things necessary to commit that crime. -- 12 of 84 -- [2026] SASCA 71 S Doyle JA 9 33 The principles governing liability for a JCE were described in the following terms by the High Court in McAuliffe v The Queen:17 The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classification of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets it commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a party reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. 34 As the Court then added, liability pursuant to a JCE extends to any crime falling within the scope of the parties’ agreement:18 Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not the other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose. 35 More recently, in Mitchell v The King, the principles of JCE were restated by Gordon, Edelman and Steward JJ:19 The doctrine of joint criminal enterprise or common enterprise is based on agreement (also expressed as common purpose, design or enterprise). Whether the agreement is expressed in words or inferred ‘from the parties’ conduct’, each party to an agreement to commit a crime will be guilty of the agreed crime and any crime ‘within the scope of the agreement’. It is therefore essential to identify what acts and omissions the parties agreed upon. The agreement need not be express and may be an inference drawn from the parties’ conduct, but it must be subjectively appreciated by the accused. The scope of such an agreement 17 McAuliffe v The Queen (1995) 183 CLR 108 (McAuliffe) at 113-114 (the Court) (citations omitted). 18 McAuliffe at 114 (the Court) (citations omitted). 19 Mitchell v The King (2023) 276 CLR 299 (Mitchell) at [54] (Gordon, Edelman and Steward JJ) (citations omitted, but including McAuliffe at 114 (the Court); and Miller v The Queen (2016) 259 CLR 380 (Miller) at [4] (the Court)). -- 13 of 84 -- [2026] SASCA 71 S Doyle JA 10 has therefore been expressed as involving matters that each party subjectively considered. In this respect, ‘it is essential to identify what the parties did agree upon and what it was that each contemplated might occur’, which requires consideration of whether each party contemplated the criminal acts ‘as a possible incident of the execution of their agreement’. But the jury must be satisfied that each party subjectively agreed (authorised or assented) to the conduct, including the criminal act. Hence, the ‘true position’ for nearly two centuries has been that ‘if one of the [parties to the agreement] goes beyond what has been tacitly agreed as part of the common enterprise, [the other party] is not liable for the consequences of that unauthorised act’. 36 And by Kiefel CJ:20 Each of the parties to a joint criminal enterprise is equally guilty of the crime that is the object of the enterprise and which is committed, so long as the agreement to commit it (which may be express or inferred) remains on foot. That is so regardless of the part each has played in its commission. Each party is also guilty of any other offence (‘the incidental offence’) which is committed by a co-venturer that is within the scope of the agreement. The incidental offence will be within the scope of the agreement to commit the first- mentioned crime if the parties contemplate its commissions as a possible incident of the execution of their agreement. 37 It is apparent from these articulations of the relevant principles that the fact and scope of an agreement between the parties are fundamental to joint enterprise liability. As to the fact of an agreement, it should be emphasised that the agreement need not be express, let alone planned; it may be inferred from conduct, and arise essentially spontaneously. As to the scope of an agreement, the charged offence must be within the scope of what the parties subjectively agreed. References to the charged offence being within the ‘contemplation’ of the parties, or being a ‘possible incident’ of the execution of the parties’ agreement must be understood in this context. Put in positive terms, an ‘incidental offence’ will be within the scope of agreement if the parties agree that it may be committed as a possible incident of the commission of the agreed criminal act. 38 Whilst it is sometimes said that the criminal act must be an intended part of the agreed enterprise, it is sufficient that it be ‘contingently and reluctantly’ intended as part of that agreed enterprise.21 In other words, an agreement might be in terms that violence, or violence of a particular type or nature, may be used if that becomes necessary. 39 It is not a requirement of liability pursuant to a JCE that the defendant be present at the scene of the crime. It is sufficient that the defendant participated in the joint enterprise. On the other hand, presence may suffice to establish participation where it is in furtherance of the joint enterprise.22 20 Mitchell at [14] (Kiefel CJ) (citations omitted). 21 Mitchell at [37] (Gageler, Gleeson and Jagot JJ). 22 Likiardopoulos v The Queen (2012) 247 CLR 265 at [21] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Huynh v The Queen (2013) 87 ALJR 434 at [38] (the Court). -- 14 of 84 -- [2026] SASCA 71 S Doyle JA 11 40 Liability pursuant to a JCE is a form of primary liability, based upon principles of agency. The acts of the perpetrator that are within the scope of the agreement, and therefore done with the authority of the other parties, are attributed to the other parties to the agreement.23 41 Liability for the offence of murder may be established through the principles of JCE. It may be established by attributing to a defendant the acts of murder if he was party to a JCE, provided that those acts of murder were within the scope of the relevant agreement.24 The scope of the agreement must encompass the possibility that a co-participant may cause death with murderous intent (that is, with an intention to cause death or grievous bodily harm). Extended joint criminal enterprise 42 The doctrine of extended joint criminal enterprise, or EJCE, extends a secondary party’s liability beyond the scope of the parties’ agreement. It extends liability to an incidental offence where the defendant has not agreed to the commission of that crime, but the defendant nevertheless foresaw or contemplated the possibility of the commission of that crime as an incident of the parties’ joint enterprise, and continued to participate in the enterprise. 43 As the Court explained in McAuliffe:25 … where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture … the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is where the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing the state of mind. … the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it. 44 Similarly, in Mitchell, Gordon, Edelman and Steward JJ described the doctrine of EJCE in the following terms:26 The doctrine of ‘extended joint criminal enterprise’, as the name suggests, involves an extension, beyond the scope of the agreement, of responsibility for a joint criminal enterprise. In Miller, the doctrine of extended joint criminal enterprise was expressed to apply where a party to a joint criminal enterprise has not agreed to the commission of a crime but has instead foreseen the commission of that crime in the course of carrying out the agreement and continues to participate in the enterprise. What is to be foreseen is that an incidental crime might be committed, being all elements of that crime. 23 Mitchell at [55] (Gordon, Edelman and Steward JJ). 24 Mitchell at [69] (Gordon, Edelman and Steward JJ). 25 McAuliffe at 117-118 (the Court). 26 Mitchell at [56] (Gordon, Edelman and Steward JJ) (citations omitted, but including McAuliffe at 117- 118); Clayton v The Queen (2006) 81 ALJR 439 (Clayton) at [26] (the Court); Miller at [4] (the Court). -- 15 of 84 -- [2026] SASCA 71 S Doyle JA 12 45 The other members of the Court in Mitchell described the doctrine in similar terms.27 In particular, Kiefel CJ said:28 The principle of extended joint criminal enterprise liability arises where a party to a joint criminal enterprise foresees, but does not agree to, the commission of an incidental crime in the course of carrying out the agreement. That is to say, the principle applies where the commission of an incidental offence lies outside the scope of the common purpose but is nevertheless contemplated as a possibility. The parties are each criminally liable for the incidental offence if with foresight of the possibility that it might be committed they nevertheless continue to participate in the enterprise and that is so whether the foresight is that of an individual party or is shared by all the parties. Criminal culpability of this kind is consistent with the general principle that a person who assists or encourages the commission of an offence may be convicted as a party to it. 46 By way of illustration of the application of this doctrine, the Court referred to a scenario where a defendant knows that another party to the joint criminal enterprise is carrying a weapon which may be used to kill or inflict grievous bodily harm in carrying out the enterprise. The defendant may not agree to the use of the weapon, and indeed may reject any agreement for its use. But if they nevertheless continue with the enterprise they will be liable for the consequences.29 47 It follows that, for the purposes of EJCE, the defendant’s contemplation of the incidental offence reflects a subjective or actual contemplation that the incidental offence may be committed. But, unlike JCE, it does not depend upon an agreement that encompasses the possibility that it may be committed. 48 In the context of an allegation of murder invoking the principles of EJCE, the necessary foresight of murder requires that the defendant contemplate the possibility that another party to the agreement may, as an incident of carrying out that agreement, commit an act that kills or inflicts grievous bodily harm, and do so with ‘murderous intent’ (that is, intending to cause death or grievous bodily harm).30 49 Contemplation of the commission of an offence necessarily entails contemplation of conduct of a kind by which the offence might be committed. For those offences, like murder, which include an element that the offending conduct achieve a certain result, it would seem that the defendant must also contemplate that result.31 That said, in Mitchell, Gordon, Edelman and Steward JJ accepted that foresight of death ‘followed naturally’ from the foresight of grievous bodily harm inflicted with murderous intent, given that it was only necessary that acts of ‘the general nature’ of the attributed act be foreseen:32 27 Mitchell at [15] (Kiefel CJ), [33] (Gageler, Gleeson and Jagot JJ). 28 Mitchell at [15] (Kiefel CJ) (omitting citations). 29 Mitchell at [15] (Kiefel CJ), [57] (Gordon, Edelman and Steward JJ). 30 Mitchell at [57]-[58], [71], [106]-[107] (Gordon, Edelman and Steward JJ). 31 Alzuain v The King [2025] SASCA 67 at [495] (Kourakis CJ, Livesey P and Bleby JA). 32 Mitchell at [58]-[60] (Gordon, Edelman and Steward JJ) (citations omitted). -- 16 of 84 -- [2026] SASCA 71 S Doyle JA 13 … foresight of the possibility of death naturally follows from foresight of really serious bodily injury (a common paraphrase of grievous bodily harm). This is particularly so since it must also be proved that the accused foresaw the possibility that the perpetrator would act with murderous intent and only acts of the general nature of the attributed act need to be foreseen. Consistently with the liability for murder being imposed upon a primary offender who intends only to cause the consequence of grievous bodily harm, the foresight required of the secondary offender is that ‘death or really serious bodily injury might be occasioned’ by a co-venturer acting with the intention to cause death or really serious bodily injury. For these reasons, in each of Gillard v The Queen, Clayton v The Queen, and Miller, it would not have made a difference whether the foresight of the possible consequence was described as one of only death or as one of either death or grievous bodily harm. Foresight of the possibility of the latter is treated as involving equivalent culpability as foresight of the possibility of the former, in the same way as intention to cause death is treated as involving equivalent culpability as intention to cause grievous bodily harm. In Gillard, the prosecution case of foresight was based on allegations that Mr Preston had been hired to kill the victim and had gone to the victim's workshop with a loaded gun. In Clayton, the prosecution case of foresight was that the assault on the victim lasted 30 to 40 minutes and involved the use of metal poles and a large carving knife. In Miller, the prosecution case of foresight was based on an assault using weapons including a 332 mm long knife, a baseball bat, and a shovel. If, however, a participant in a joint criminal enterprise foresees only the elements of a lesser crime than the crime for which the primary offender is convicted, then the participant can only be convicted of that lesser crime under the principles of extended joint criminal enterprise. For example, a participant in a joint criminal enterprise of robbery might foresee the possibility that the primary offender would cause very serious bodily harm or death to another person but might not foresee the possibility that the primary offender would do so with murderous intent. In that circumstance, even if the primary offender is convicted of murder, the participant can only be convicted of manslaughter under the principles of extended joint criminal enterprise. 50 Later in their reasons, their Honours confirmed that it was necessary, for the purposes of liability for common law murder invoking the principles of EJCE, that the prosecution establish that the defendant foresaw the consequence of death or grievous bodily harm, albeit that this might be a very short step from foresight that a co-venturer might act with murderous intent:33 The trial judge directed the jury that they could only find that an accused person was guilty of murder under the pathway of common law murder based on extended joint criminal enterprise if the prosecution had proved beyond reasonable doubt that the accused foresaw that a participant to the joint criminal enterprise might inflict violence with an intention of causing death or really serious bodily harm. But the trial judge erred by failing to direct the jury that for common law murder based on extended joint criminal enterprise the accused must also foresee the consequence of death or really serious bodily harm. In many cases, foresight of this consequence might be a very short step from foresight that a participant might act with murderous intention. The direction that the trial judge should have given in relation to extended joint criminal enterprise is one in which it was explained that conviction depended upon proof beyond reasonable doubt that the accused foresaw 33 Mitchell at [107] (Gordon, Edelman and Steward JJ). -- 17 of 84 -- [2026] SASCA 71 S Doyle JA 14 that in the commission of that crime there as a possibility that another person, with intent to do so, would cause really serious bodily harm or death. 51 The rationale for EJCE differs from the rationale for JCE. Unlike JCE, it does not involve the attribution of the acts of another which are authorised by reason of being within the scope of the parties’ agreement. Rather, the rationale for EJCE lies in the defendant being regarded as intentionally assisting in the commission of a crime by continuing to participate in an enterprise with foresight of the possibility of that crime. It is not a form of primary liability. Rather, the liability of the defendant is a form of secondary or derivative liability which is derived from, and dependent upon, the criminal liability of another for the foreseen crime which was not part of the agreement.34 Constructive murder 52 Section 12A of the CLCA provides that a person who commits an intentional act of violence, while acting in the course or furtherance of a major indictable offence punishable by imprisonment for 10 years or more, and thus causes the death of another, is guilty of murder. 53 Section 12A does not create a separate offence. It is, instead, another pathway to establishing the offence of murder under s 11 of the CLCA. It, in effect, alters the common law constructive murder rule that would otherwise have applied under s 11.35 54 There is no difficulty with imposing liability for constructive murder through the principles applying to a JCE. Although the requirements of s 12A focus upon the conduct and state of mind of the primary offender who committed the relevant act, where that occurs within the scope of the parties’ agreement, there is no difficulty with attributing that act to a defendant who is a party to that agreement.36 As Kiefel CJ said in Mitchell:37 The principle of joint criminal enterprise has been held to apply to common law felony murder and to constructive murder under s 12A. As to the latter, in Arulthilakan v The Queen the application of the principle does not appear to have been doubted. The co- accused of the two appellants stabbed and killed a person in the course of the robbery. Both appellants were aware that he was in possession of the knife which was used. It was observed that the plan was to ‘roll’ the deceased. That involved robbery accompanied if necessary by force and the use of force was therefore within the scope of the agreement. 55 Liability for constructive murder pursuant to a JCE requires that the prosecution establish that the defendant was party to an agreement to commit the relevant major indictable offence, and that the agreement included the possible 34 Mitchell at [61] (Gordon, Edelman and Steward JJ); McAuliffe at 117 (the Court); Clayton at [20] (the Court); Miller at [1], [4] (the Court). 35 Mitchell at [73] (Gordon, Edelman and Steward JJ). 36 Mitchell at [19] (Kiefel CJ), [40]-[41] (Gageler, Gleeson and Jagot JJ), [75] (Gordon, Edelman and Steward JJ). 37 Mitchell at [19] (Kiefel CJ) (citations omitted). -- 18 of 84 -- [2026] SASCA 71 S Doyle JA 15 commission, in the course of or in furtherance of that offence, of an intentional act of violence of ‘the same general nature’ as that which caused the death.38 56 As Gordon, Edelman and Steward JJ explained, it is not necessary that the agreement extend to ‘the precise manner in which the act was committed.’ Rather, it is sufficient for the scope of the agreement to extend to acts ‘of the general nature of the attributed act.’39 Their Honours referred in this context to a decision to the effect that it did not prevent a conviction for constructive murder, through a JCE involving an agreement to rob, that the robbery varied ‘in the manner of execution of [the] agreed plan … [O]bviously it must have been a plan to rob with some degree of violence’.40 Their Honours concluded their reasons by summarising the position as follows:41 Where, in the case of joint criminal enterprise, an accused is alleged under s 12A to be a party to an agreement to commit the major indictable offence alleged by the prosecution, it would require a jury to be satisfied beyond reasonable doubt that the accused was a party to an agreement to commit the major indictable offence and that the agreement included the possible commission of an intentional act of violence of the same general nature as that which caused the death42. 57 Gageler, Gleeson and Jagot JJ expressly agreed with this paragraph from their colleagues’ reasons,43 and hence with the proposition that the parties’ agreement must extend to the possible commission of an intentional act of violence of ‘the same general nature’ as that which caused the death. 58 However, each of the members of the Court in Mitchell held that the principles of EJCE were not engaged by s 12A.44 Although their Honours’ reasoning differed in their relative emphasis upon matters of statutory construction, coherence and the appropriate breadth of criminal responsibility, the net effect is that the Court unanimously held that s 12A does not permit a pathway to murder by combining the operation of the doctrines of constructive murder and EJCE. Mere foresight of (as opposed to agreement to) the relevant possibility will not suffice to establish liability for constructive murder. 38 Mitchell at [19] (Kiefel CJ), [108] (Gordon, Edelman and Steward JJ). 39 Mitchell at [65] (Gordon, Edelman and Steward JJ). 40 Mitchell at [65] (Gordon, Edelman and Steward JJ), referring to Betts (1930) 22 Cr App R 148 at 155, and also footnoting R v Dowdle (1900) 26 VLR 637 at 639; R v Kalinowski (1930) 31 SR (NSW) 377 at 380; R v Solomon [1959] Qd R 123 at 126-127; IL v The Queen (2017) 262 CLR 268 at [157]. 41 Mitchell at [108] (Gordon, Edelman and Steward JJ). 42 See also the reasons of Kiefel CJ at [19]. 43 Mitchell at [48] (Gageler, Gleeson and Jagot JJ). 44 Mitchell at [30] (Kiefel CJ), [42]-[43] (Gageler, Gleeson and Jagot JJ), [97]-[104] (Gordon, Edelman and Steward JJ); as conveniently summarised in Batak v The King (2024) 114 NSWLR 313 at [129]- [134] (Kirk JA, Wilson and Ierace JJ). -- 19 of 84 -- [2026] SASCA 71 S Doyle JA 16 PART B: APPEAL IN HOWELL The trial 59 In alleging at trial that Mr Howell was guilty of murder, the prosecution relied upon two alternative pathways to guilt. 60 The first pathway was guilt through common law murder, applying the principles of EJCE. This pathway involved a contention that Mr Howell was party to an agreement to commit aggravated robbery with the use of any necessary violence, and that he foresaw that one of his co-venturers might inflict violence on the occupant of the premises with the intention of causing death or grievous bodily harm. 61 The second pathway was guilt through constructive murder under s 12A of the CLCA, applying the principles of JCE. This pathway involved a contention that Mr Howell was party to an agreement to commit aggravated robbery (a major indictable offence punishable by more than 10 years’ imprisonment)45 with the use of any necessary violence, and that, while acting in furtherance of the aggravated robbery, one of the parties to the JCE committed an intentional act of violence which caused the deceased’s death. 62 Mr Howell’s case at trial was that he was not aware of the plan to rob the grow house until they arrived at the house on Carousel Street. He argued that once he became aware of such a plan, he objected to participating but ultimately acquiesced when threatened by another member of the group. He relied upon a defence of duress. Mr Howell argued that his role was confined to keeping a lookout (under duress), while the others stole the cannabis and assaulted the deceased. 63 It is not necessary to set out the evidence adduced at trial at length. As will be apparent, the prosecution’s proposed grounds of appeal do not involve any challenge to the judge’s findings of primary fact. They focus upon the judge’s ultimate inferences or conclusions, and can be addressed largely by reference to the operative passages from her Honour’s reasoning. 64 However, by way of overview, the prosecution case relied upon a substantial body of evidence and agreed facts. This included: • evidence from some friends of Mr Gjabri about his background (including how he came to be living in the premises on Carousel Street, his car and the discovery of his body on 12 October 2018); • agreed facts linking Mr Rigney to possession of a white Holden commodore, and Mr Mitchell to ownership of a blue Subaru, and establishing that the five defendants travelled in these cars to Para Vista (arriving about 11.30pm on 45 Noting that it was contended that the theft of the cannabis with the use of force constituted robbery, which was aggravated by reason of the offending being committed in company. -- 20 of 84 -- [2026] SASCA 71 S Doyle JA 17 8 October 2018),46 and returned via Ingle Vale to Murray Bridge (arriving about 1.30am on 9 October 2018); • CCTV footage from various premises in the area of the Carousel Street grow house showing two cars driving around the nearby streets shortly before midnight on 8 October 2018, and then, shortly after midnight, five men47 walking towards, and entering, the Carousel Street premises; • evidence from some residents of Gilbert Street, Ingle Vale, who saw the defendants transferring the cannabis they had stolen from the Carousel Street grow house; • agreed facts and evidence in relation to the police searches and crime scene investigation of the Carousel Street premises, including detail of the layout of the premises, the cannabis set up, the damage to the premises, and various items located throughout the premises; • agreed facts and evidence in relation to the forensic testing (including fingerprint and DNA analyses) carried out in relation to the Carousel Street premises, various items located in those premises and Mr Gjabri’s car; • evidence from a police officer with experience in investigating drug offending as to various aspects of the operation of hydroponic cannabis set ups such as the one found in the Carousel Street grow house; and • evidence of various persons connected with Mr Howell (in particular, his then partner, CD, and friends, TL and JL) as to their observations of, and communications with, Mr Howell relevant to his involvement in the events of the night of 8 October 2018, including describing his distress following that night and on the occasions of subsequent media coverage of what had occurred. 65 The evidence also included a record of Mr Howell’s police interview in which he made various admissions as to his involvement in the events on the night of 8 October 2018, whilst at the same time emphasising what he claimed were the duress he was under and his limited involvement the robbery of the grow house. Mr Howell described Mr Rigney as carrying a cricket bat as they approached the grow house, and as using that bat to attack the Mr Gjabri. The prosecution evidence also included some intercepted phone calls involving Mr Howell, and some video files from his phone. 66 Finally, the prosecution also led evidence from a forensic pathologist, Dr Charlwood. Dr Charlwood gave evidence relating both to the observations she made of Mr Gjabri’s body when she attended the Carousel Street premises for that 46 Mr Howell, Mr Mitchell, Mr Carver and Mr Tenhoopen having travelled from Murray Bridge, and Mr Rigney having travelled from Prospect. 47 Whom it was agreed were the five defendants. -- 21 of 84 -- [2026] SASCA 71 S Doyle JA 18 purpose on 12 October 2018, and during the post-mortem examination that she conducted a couple of days later. Dr Charlwood’s observations included: that Mr Gjabri was 176 centimetres in height and 58 kilograms in weight; that he had sustained injuries and bruising to over 20 locations on his body and head, as indicated on a body chart she had prepared; that these injuries included an injury to the top and left side of Mr Gjabri’s head comprising a v-shaped laceration up to 9.5 centimetres in length, as well as two other wounds on his head; that she was not able to be precise as to the number of blows required to inflict the injuries as it would depend upon the implement(s) used; that the injuries were consistent with having been inflicted by a bat, including the edge of a cricket bat; and that she could not usefully estimate the force with which the blows were struck. In Dr Charlwood’s opinion, the cause of death was blunt force head injuries (applied to the top and left of Mr Gjabri’s head), which she suggested were more likely to have been the result of a moving object hitting his head than his head hitting a stationary object. She estimated a time of death of between about 35 minutes and 24 hours after the fatal blow(s) were struck. The judge’s findings of fact 67 After setting out a lengthy summary of the evidence adduced at trial, Stein J proceeded to make detailed findings of fact. The key findings may be summarised as follows. 68 As at October 2018, the Carousel Street house was set up as a cannabis grow house, with Mr Gjabri residing there as a gardener. Three bedrooms of the house were devoted to the hydroponic cultivation of cannabis, with two of those rooms containing a number of mature plants. The cannabis taken by the defendants would have been valuable.48 69 The windows of the Carousel Street house were intact and entry was not gained via the windows. The state of the front door was consistent with entry into the house through that door, which was achieved by the application of force and without the use of tools.49 70 In the evening of 8 October 2018, four of the defendants (Mr Howell, Mr Mitchell, Mr Tenhoopen and Mr Carver) drove from Murray Bridge to Para Vista in a blue Subaru belonging to Mr Mitchell. They arrived and parked in Para Vista at around 11.35am.50 A short time earlier, at about 11.15pm, Mr Rigney had arrived in his white Commodore.51 Both vehicles were parked in a location a few blocks from the Carousel Street grow house. 48 Reasons [438]. 49 Reasons [441]. 50 Reasons [444]-[445]. 51 Reasons [446]. -- 22 of 84 -- [2026] SASCA 71 S Doyle JA 19 71 CCTV footage showed the five men approaching the Carousel Street grow house on foot, albeit not by the most direct route from the location where they had parked.52 As to the object carried by one of the men, the judge found: [449] … the CCTV shows one man carrying a long linear object which, when held in the hand of the walking man, reached close to the ground. The object reflected light and, from its appearance, was consistent with being a cricket bat or a stick or pole. Given the manner the object was held and its size, I infer the men would have been aware that one of the group was carrying the object. The CCTV footage is too poor to enable any findings about whether any of the men were carrying any other objects in their hands or pockets. 72 The judge found that Mr Howell was aware that one of the defendants (Mr Rigney) was in possession of a weapon, and that the weapon was a bat: [503] Each of TL and JL referred to a cricket bat and CD thought Mr H possibly told her about a bat. As set out above, given the CCTV footage, I consider it inherently implausible that Mr H was not aware that someone in the group was carrying such an object prior to the other men returning from the back of the house. Mr H referred to Mr Rigney having a cricket bat in his record of interview. Although there was inconsistency in his account of when he first saw the cricket bat, the alternative accounts entailed his awareness of the bat prior to entering the house. I consider it inherently unlikely that Mr H would make up a detail of a weapon in the nature of a cricket bat if no weapon or no such weapon was being carried. The detail of a bat is consistent with the CCTV showing a man carrying an object shaped like a bat. Based on the record of interview, I find that Mr H knew prior to the group breaking in that one of the men was in possession of a weapon and that weapon was a bat. 73 Shortly after midnight, the men walked down Carousel Street towards the grow house in approximately single file.53 The men forced entry to the house through the front door. Mr Howell and some of the other men covered their hands before entering the house.54 74 The judge found that prior to entering the house, Mr Howell knew that there was a person present in the house: [501] During the record of interview, Mr H referred to a car in the driveway of the house and to making noise going across the fence to warn the person they were coming. Further, Mr H referred to expecting that they would go to the door, “punch” the man and “steal a pound”, consistent with understanding someone was in the house. I therefore find that prior to entering the house, Mr H knew that there was a person present in the house. 75 Once inside, some of the men entered the bedrooms in which the mature plants were growing in pots. They severed the plants at the stem, and placed the stolen cannabis into black plastic bags.55 There was DNA evidence placing some of the defendants in the house. Whilst there was no evidence placing Mr Howell 52 Reasons [447]-[448]. 53 Reasons [450]. 54 Reasons [451]. 55 Reasons [452]. -- 23 of 84 -- [2026] SASCA 71 S Doyle JA 20 in the house, the judge found (based, inter alia, upon his record of interview) that he entered the house.56 76 The judge found that, once inside, one or more of the defendants assaulted Mr Gjabri: [502] I accept Mr H’s account in his record of interview that Mr Gjabri was assaulted when the men gained entry into the lounge room area of the house. I find that Mr Gjabri was kept in the location of the lounge room by threats and use of force while the men cut and removed the cannabis plants. 77 The judge also found that Mr Gjabri was a slight man, who was not aggressive. She rejected as a reasonable possibility that he posed a threat to, or attacked, any of the men. She accepted Mr Howell’s account (in his record of interview) of Mr Gjabri attempting unsuccessfully to prevent the defendants entering the kitchen where he was located, referring to Mr Rigney jamming the door to that room open.57 78 The plastic bags containing the cannabis were placed in Mr Gjabri’s car, which was in the driveway of the Carousel Street house. Based on the CCTV footage, the men left in that vehicle at about 12.33am. They returned to their parked vehicles, and then drove all three vehicles to Gilbert Street. In that location, the men transferred cannabis bags from Mr Gjabri’s car to the boot of one of the other cars. Mr Howell assisted in this task.58 79 The men then left Gilbert Street in their two vehicles and, after stopping at a service station in Norwood, returned in convoy to Murray Bridge.59 There the men divided the cannabis between them. 80 The judge accepted the evidence of Mr Howell’s partner, CD, that Mr Howell arrived home with several plastic bags of cannabis. Her Honour accepted CD’s description of Mr Howell as appearing white and distraught, and saying that he was going to be sick.60 Her Honour also accepted the evidence of CD and Mr Howell’s friends, TL and JL, about his adverse reaction to the subsequent press coverage of what was described as a murder investigation. They had variously described Mr Howell as white, crying and appearing frozen and scared following a particular news report on 19 October 2018.61 81 The judge analysed in some detail the admissions that she was prepared to find that Mr Howell made in his discussions with CD, TL and JL. Her Honour accepted that each of these witnesses gave honest evidence to the best of their recollection about conversations which had occurred about six years prior to them 56 Reasons [453]-[454]. 57 Reasons [455]. 58 Reasons [456]-[459]. 59 Reasons [461]. 60 Reasons [463]. 61 Reasons [469]. -- 24 of 84 -- [2026] SASCA 71 S Doyle JA 21 giving evidence.62 She found that Mr Howell admitted to each of them that he went to Adelaide to take part in a ‘drug rip’.63 She accepted that he claimed to have expressed reluctance to take part, but nevertheless went with the other men.64 82 The judge accepted that Mr Howell admitted that some of the defendants wore gloves; that they called out ‘police’ when entering the grow house; and that his role involved keeping a lookout. These admissions were consistent with what Mr Howell had subsequently said in his police interview.65 83 The judge accepted Mr Howell’s account in his record of interview that Mr Gjabri was assaulted when the men gained entry into the lounge room area of the house; and that Mr Grjabri was kept in the lounge room by threats and the use of force while the men cut and removed the cannabis plants.66 84 The judge found that Mr Howell also admitted to CD, TL and JL that he had hit Mr Gjabri with a bat or cricket bat, despite denying in his police interview that he inflicted any blows. Her Honour also found that he referred to Mr Gjabri having had his leg struck or broken with the bat.67 She accepted that Mr Howell admitted seeing Mr Gjabri struck to the head, and blood flowing from his head, while Mr Howell was present in the lounge room of the house (and hence prior to Mr Howell leaving the house).68 Noting that the prosecution did not put its case on the basis that Mr Howell was the assailant who struck Mr Gjabri on the head, and indeed did not invite the judge to make any finding as to who was responsible for that blow or blows, the judge said that she could not conclude beyond reasonable doubt which injuries were inflicted by which individuals.69 85 As for causation, her Honour’s findings essentially reflected Dr Charlwood’s evidence: [425] I find that Mr Gjabri sustained blunt force trauma in the form of the injuries described by Dr Charlwood. [426] I accept Dr Charlwood’s evidence about the number of injuries sustained by Mr Gjabri across his head and body … I find the bruising with linear areas in the location of the chest and calf are consistent with a straight edged weapon. [427] I accept Dr Charlwood’s evidence that the injuries to the top of Mr Gjabri’s head were more likely to have been caused by a moving object hitting his head rather than his head hitting a stationary object. I also accept the overlapping skull fracturing is more suggestive of two blows but that one blow remains a possibility. 62 Reasons [480]. 63 Reasons [483]. 64 Reasons [484]. 65 Reasons [485]-[486]. 66 Reasons [502]. 67 Reasons [487]-[489]. 68 Reasons [492]. 69 Reasons [493]. -- 25 of 84 -- [2026] SASCA 71 S Doyle JA 22 [428] I cannot determine precisely the number of blows inflicted on Mr Gjabri. [429] I accept Dr Charlwood’s evidence and find that the injuries to Mr Gjabri’s leg, chest and head were consistent with infliction by a cricket bat, but that those injuries could have been caused by other objects, such as a heavy stick. [430] I accept Dr Charlwood’s evidence and find that the force required to cause the scalp fracture was severe force. [431] I find that Mr Gjabri’s death was caused by blunt force injuries inflicted on the top left side of Mr Gjabri’s head. [432] I find that Mr Gjabri survived for a period of at least 35 minutes. I accept Brevet Sergeant Buller’s evidence concerning the places in which blood was located. I infer Mr Gjabri must have been conscious and moving around for at least part of the period of time he survived and remained conscious, as evidenced by the blood on top of cannabis leaf litter and the blood and vomit in locations including the bathroom. [433] There was a smear of Mr Gjabri’s blood in the hallway near a light switch close to the front door and on the door frame of the front door. … I am unable to make any findings on this topic other than that Mr Gjabri must have been conscious and moved to the location of the front door after the assault as evidenced by the blood stain in that location. I accept Dr Charlwood’s evidence that he must have had some ability to make decisions and sufficient strength to move around for some time after the assault. [434] Prosecution submitted that it was most likely that the head injuries were inflicted last because such blows would have incapacitated Mr Gjabri and there would be no reason to continue the assault and inflict the further injuries. Given Dr Charlwood’s evidence about the period of likely survival and Mr Gjabri’s ability to move around for a period of time after the assault and her inability to determine any sequence of injuries, it is possible the head injuries could have been inflicted other than as the last inflicted injuries. I cannot make any findings about the sequence in which the various injuries were inflicted. [435] I am unable to find how long Mr Gjabri survived beyond the period of 35 minutes referred to by Dr Charlwood. I am unable to reach any conclusions about when Mr Gjabri would have lapsed into unconsciousness. 86 Having made findings of fact, including the key findings set out above, the judge set out her operative reasoning in relation to the charged offending. The judge’s operative reasoning 87 The judge commenced her operative reasoning by addressing the prosecution case on common law murder, before addressing constructive murder and then manslaughter. Common law murder 88 The judge commenced her analysis by describing the prosecution case on common law murder pursuant to an EJCE: -- 26 of 84 -- [2026] SASCA 71 S Doyle JA 23 [505] On the prosecution case, Mr H entered into an agreement with the other men to commit robbery by breaking into the grow house occupied by Mr Gjabri to steal cannabis using necessary force and, in the course of carrying out the plan, to which Mr H was a party, Mr H foresaw the possibility one of the other men would commit murder. The prosecution relied on the fact the group was armed and the way they entered the house, contending it was in Mr H’s contemplation that Mr Rigney, who had the bat and was a violent man, would kill the occupant in circumstances amounting to murder. An agreement to steal cannabis 89 The judge addressed whether Mr Howell entered into an agreement to steal cannabis with the other defendants. In explaining her reasons for concluding that Mr Howell had entered into such an agreement before entering the grow house, and at the latest by the time the men were at the grow house, her Honour relied upon several matters.70 90 The judge explained that it was inherently implausible that the men drove from Murray Bridge to Para Vista and just coincidentally found themselves in the vicinity of a grow house. The only credible explanation for their movement was that it was intentional, with a purpose and target in mind. The way they parked and then approached the grow house was inconsistent with any innocent explanation. The only plausible reason to then break into the grow house was to steal cannabis. This conclusion was supported by Mr Howell’s admission that he took part in a ‘drug rip’. The judge added that, even if Mr Howell was not aware of the purpose of the trip prior to, or during, the journey from Murray Bridge, by the time he arrived at the Carousel Street grow house, and prior to entry into that house, he was aware of the intention to steal cannabis from that house. The scope of the agreement 91 The judge next addressed the scope of the agreement, and hence the agreed JCE. As the judge observed, the prosecution case that the scope of the agreement was not simply to steal cannabis, but also to use violence as necessary, was relevant not only in establishing an agreement to commit the foundational offence of aggravated robbery,71 but also in determining Mr Howell’s level of foresight.72 Her Honour noted the prosecution reliance upon the men’s knowledge that there was an occupant in the grow house who would need to be subdued, and that they went in numbers and with a bat (which was a weapon not required for the theft, nor used to enter the house). 92 The judge did not accept that what occurred was a well-planned operation, given the public location and disorganised manner in which the men moved the stolen cannabis from Mr Gjabri’s car into their own cars. At the same time, it was not a coincidental happening upon the grow house. There was sufficient planning to result in five men in two separate cars congregating in the vicinity of the 70 Reasons [509]-[512]. 71 As opposed to some lesser offence such as aggravated criminal trespass. 72 Reasons [513]. -- 27 of 84 -- [2026] SASCA 71 S Doyle JA 24 Carousel Street grow house late at night, and then proceeding by foot with a bat and using force to enter the premises with the intention of stealing the cannabis located inside.73 As the judge observed, the success of the plan would depend in part on preventing any person who may be present from impeding the plan. In those circumstances, her Honour found that it was inherently implausible that the plan did not include the potential for a threat or application of force in order to subdue the occupant or otherwise deter him from interfering with the success of the plan: [514] … It is thus inherently implausible that no consideration was given to the potential for the grow house to be occupied and what steps would be taken if that eventuality transpired in order to ensure the operation was successful. I consider it fanciful that the agreement did not contemplate the potential need to take steps to prevent an occupant from impeding the planned theft. The carrying of the bat was consistent with such contemplation. I thus consider it inherently implausible that the agreement did not contemplate the need to use the bat to threaten or strike the occupant to subdue him or deter him from interfering in the operation to ensure the success of the plan. Put differently, I do not consider it a reasonable possibility that the plan to steal did not include the potential for threat or the application of force by way of assault against an occupant. 93 However, the judge added that this conclusion did not necessarily entail an agreement the scope of which contemplated the use of any level of violence.74 The judge noted her earlier findings that Mr Howell knew that the grow house was occupied, and that Mr Rigney was carrying a bat as they entered. She noted that the bat was neither tailored to, nor used for, the purpose of gaining entry; but that it was an item that could be used ‘to threaten and to inflict injury to subdue’. Her Honour inferred that the bat was carried ‘with the intended purpose of use in deterring the occupant of the grow house from preventing the planned theft.’75 94 The judge summarised her earlier findings about the circumstances of the men’s entry to the grow house: [518] At least by the time the men entered the grow house, they were in fact aware there was an occupant in the house. The combination of the vehicle parked in the driveway, yelling “police” on entry through the front door, Mr H’s account of Mr Rigney entering the house with the bat, moving to the kitchen door where Mr Gjabri was peering through the door, and Mr Rigney forcing his way through supports an inference that the men were aware of an occupant and took steps immediately to prevent the occupant impeding their entry and theft of the cannabis. Mr H acknowledged knowing there was an occupant and referred to his asserted understanding that they would punch the man in the nose and take his cannabis. This is consistent with Mr H knowing there was someone present and anticipating the use of some level of force to enable the successful theft of the cannabis. 95 Her Honour considered this provided a sufficient basis to find that there was ‘at least tacit agreement to the participants taking steps including threats and use 73 Reasons [514]. 74 Reasons [515]. 75 Reasons [516]. -- 28 of 84 -- [2026] SASCA 71 S Doyle JA 25 of force to subdue the occupant while the theft took place to ensure a successful operation’.76 96 In her Honour’s view, the evidence did not permit her to infer an agreement to use any level of violence, including the infliction of lethal or fatal force. However, it was sufficient to establish an agreement to use ‘some force to assault and subdue the occupant to ensure the success of the plan to steal the cannabis’: [521] If the men had been armed with knives or guns, it would provide a basis for a stronger inference to the effect that any level of violence, including lethal force, was part of the agreement. However, entry into the house with a bat does not justify the same strength of inference. If the scope of the agreement had been to cause grievous bodily harm or kill the occupant, it would be expected that the participants would have entered the house armed with suitable weapons apt to achieve that eventuality, such as guns or bladed weapons. [522] There is insufficient evidence to satisfy me beyond reasonable doubt that the scope of the agreement must have included any form of violence including infliction of fatal force. However, taking into account the matters to which I have referred above, I am satisfied beyond reasonable doubt that the scope of the agreement included threats or the use of some force to assault and subdue the occupant to ensure the success of the plan to steal the cannabis. 97 As the scope of the agreement did not extend to the violence inflicted upon Mr Gjabri (that is, violence perpetrated with an intention to kill or cause grievous bodily harm), the prosecution case for common law murder was predicated upon an application of the principles of EJCE. However, before addressing the application of these principles, the judge first addressed Mr Howell’s participation in the agreement that she found was established. Participation in the enterprise 98 The judge rejected the submission that Mr Howell was present in the house but did not participate. He participated by donning gloves, entering the house, acting as a lookout and taking some part in the assault of Mr Gjabri.77 On her Honour’s reasoning, this was so, even if he had not expected the significant level of violence which was inflicted upon Mr Gjabri, and even if he had told others to leave Mr Gjabri alone prior to leaving the house. Any change of heart was not sufficient to constitute an effective withdrawal from the enterprise.78 Given Mr Howell’s admission that he saw blood streaming down Mr Gjabri’s face, the judge considered it implausible that there was a single causative blow to Mr Gjabri’s head after he had left the house.79 Further, and in any event, even if Mr Tenhoopen had remained in the house after Mr Howell left, the cannabis was 76 Reasons [519]. 77 Reasons [524]. 78 Reasons [525]. 79 Reasons [527]. -- 29 of 84 -- [2026] SASCA 71 S Doyle JA 26 still being loaded into the car in the driveway at this time (meaning, it would seem, that the joint enterprise was still on foot).80 EJCE and the foresight of murder 99 The judge correctly observed that, in order for Mr Howell to be guilty of murder by EJCE, the prosecution was required to prove beyond reasonable doubt that Mr Howell foresaw (as opposed to agreed) that in carrying out the joint enterprise to break into the house and steal cannabis, one or more of the participants might cause death or grievous bodily harm to the occupant accompanied with the intention to kill or cause grievous bodily harm.81 100 The judge reiterated her finding that the act or acts of striking Mr Gjabri to his head were a substantial cause of his death. Her Honour was also satisfied that the act or acts were voluntary and deliberate, and were not attended by any lawful excuse.82 101 However, her Honour was not satisfied that the prosecution established beyond reasonable doubt that Mr Howell foresaw that, in the course of the joint enterprise, one of the defendants might cause grievous bodily harm or death with murderous intent: [532] As set out above, on Mr H’s own account, Mr H knew the house was occupied and Mr Rigney was carrying the cricket bat when they entered the house. It is inherently implausible that Mr H could not have foreseen that the bat might be employed in some way to threaten or strike the occupant to deter him from interfering in the theft. However, a bat is capable of being used to threaten or to strike a person’s legs or arms or trunk sufficient to cause pain in order deter the person from attacking invaders or taking steps to thwart a theft without inflicting grievous bodily harm or death. A strike or strikes sufficient to cause grievous bodily harm or kill is not required to achieve that end, nor is that level of injury necessarily inherent in use of a weapon of that nature. Mr H’s reference to punching the man to steal a pound in the record of interview is consistent with foresight or an expectation of the possibility of some form of assault on the occupant of the grow house. However, the evidence as a whole is insufficient to satisfy me beyond reasonable doubt that Mr H foresaw that one of the men might attack the occupant causing grievous bodily harm or death with the requisite intention to inflict grievous bodily harm or to kill. There is no evidence the men entered with more than the cricket bat or with weapons of a kind intrinsically likely to cause serious injury or death, such as knives or guns. There was no use of such a weapon, despite the discovery of the knife with Mr Carver’s DNA. There is no evidence that other items found in the house, such as the hammer and crowbar depicted in the crime scene photographs, were employed as weapons against Mr Gjabri. [533] The extent of Mr H’s distress on his return to Murray Bridge and in Kadina is not consistent with that of a man who had taken part in an operation which ran as planned. At the time Mr H returned to Murray Bridge he did not know Mr Gjabri had died. While I cannot find precisely what caused his reaction on his return, it is 80 Reasons [528]. 81 Reasons [529]. 82 Reasons [530]. -- 30 of 84 -- [2026] SASCA 71 S Doyle JA 27 reasonably possible that his significant distress was a result of the extent of the assault on Mr Gjabri and incompatible with Mr H possessing foresight that one of the group may assault Mr Gjabri with the intention of causing grievous bodily harm or death. [534] I therefore cannot find beyond reasonable doubt that in the course of participating in the joint enterprise, Mr H foresaw that one of his co-accused might cause grievous bodily harm or death with murderous intent. Conclusion on common law murder 102 Although the judge held that the prosecution had excluded duress,83 because it had not proved the requisite foresight on the part of Mr Howell, it failed to establish its case against him for common law murder based on ECJE.84 Constructive murder 103 In commencing her analysis of constructive murder pursuant to a JCE, the judge explained that the prosecution case for constructive murder required that Mr Howell was party to an agreement to commit a foundational offence, being the major indictable offence of aggravated robbery, ‘including the use of any necessary force’.85 104 The judge noted that the foundational offence of robbery, aggravated by it being committed in company, was a major indictable offence with a maximum penalty of more than 10 years’ imprisonment. Drawing on the findings referred to earlier in these reasons, the judge was satisfied that all of the elements of this foundational offence were committed by the participants in the joint enterprise, and that Mr Howell was party to the agreement to commit that offence, and participated in the joint enterprise by which it was committed.86 105 The judge next noted her conclusion that the intentional act or acts of violence that caused Mr Gjabri’s death were committed during the course of the aggravated robbery.87 106 However, as her Honour explained, for Mr Howell to be guilty of constructive murder pursuant to a JCE, the scope of the parties’ agreement was required to include ‘the possible commission of an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death’.88 107 Drawing upon similar reasoning to that which she applied in concluding that Mr Howell did not have the foresight necessary to establish common law murder pursuant to an EJCE, the judge was not satisfied that Mr Howell was party to an 83 Reasons [535]-[548]. 84 Reasons [549]. 85 Reasons [550]. 86 Reasons [552]-[555]. 87 Reasons [556]. 88 Reasons [557] (emphasis added), referring to Mitchell at [60] (Gordon, Edelman and Steward JJ). -- 31 of 84 -- [2026] SASCA 71 S Doyle JA 28 agreement which included the possible commission of an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death: [558] While the issue of the scope of the agreement and questions of foresight are distinct, there is an overlap of the relevant evidence from which inferences may be drawn concerning each. [559] I am not satisfied beyond reasonable doubt that the possession of the bat prior to entry into the grow house is consistent only with an inference that the agreement included the possibility of violence of same general nature as caused the death. In this case, the violence that caused the death was striking the occupant of the grow house to the head with the weapon with sufficient force to fracture the skull resulting in the consequential brain injuries. The evidence is not sufficient to satisfy me beyond reasonable doubt that violence of the same general nature as caused death was within the scope of the joint enterprise. As discussed above, a bat is capable of being used to subdue without necessarily striking to the head or necessarily causing grievous bodily injury or death. The position may have been different if the men had entered the house with guns or knives. [560] Further, while Mr H’s reference to punching the man to steal a pound in the record of interview is consistent with foresight or expectation of the possibility of some form of assault on the occupant of the grow house, that is of a very different nature to the violence inflicted by striking Mr Gjabri to his head with the bat and with sufficient force to fracture his skull. 108 The trial judge concluded that the prosecution had failed to prove its case for constructive murder based on JCE.89 Manslaughter 109 Having concluded that common law murder by EJCE and constructive murder by JCE had not been made out, that left for consideration manslaughter by EJCE.90 110 As the judge explained, a finding of manslaughter by unlawful and dangerous act required proof that a reasonable person in the position of the assailant would have realised he was exposing Mr Gjabri to an appreciable risk of serious injury when striking him to the head with the bat. The judge found that the blow or blows which caused the death of Mr Gjabri was or were dangerous; that a reasonable person in the position of a person striking Mr Gjabri to the head with a bat would have realised that this would expose him to an appreciable risk of serious injury.91 111 The judge was satisfied that Mr Howell was party to, and participated in, a joint criminal enterprise to steal cannabis and use threats or force to subdue the occupant of the grow house; and that he foresaw the possibility that the bat might be used to subdue the occupant causing serious injury to the occupant: 89 Reasons [561]. 90 Reasons [562]. 91 Reasons [563]-[564], [567]. -- 32 of 84 -- [2026] SASCA 71 S Doyle JA 29 [565] Mr H entered into and participated in a joint criminal enterprise to steal cannabis. The scope of the agreement included use of threats or force to subdue the occupant to ensure the success of the plan to steal the cannabis. [566] Without repeating all of the matters to which I have referred above, Mr H knew the members of the group were intending to steal cannabis from a grow house, knew there was a person in the grow house and knew that one of the men was armed with a bat. A bat is not a weapon necessarily likely to inflict injury sufficient to cause grievous bodily harm or death. Nevertheless, a bat by its very nature is of a size and weight sufficient to be inherently capable of causing serious injury if wielded against a person. I reject as fanciful the possibility that Mr H did not foresee the possibility the bat might be used to subdue the occupant causing serious injury to the occupant. 112 The judge concluded that Mr Howell was therefore guilty of manslaughter by operation of the principles of EJCE.92 Summary 113 It is useful to conclude this summary of the judge’s operative reasoning by summarising her Honour’s carefully calibrated conclusions as to the nature and level of the violence that Mr Howell agreed to, or foresaw, as a possible incident of the joint enterprise to steal cannabis from the Carousel Street grow house. 114 In describing the scope of the agreement, the judge rejected the argument that Mr Howell was party to an agreement to steal cannabis that included the possible use of any level of violence.93 However, her Honour accepted that the scope of the agreement included the possible use of the bat to threaten or apply force to (including strike and cause injury to) the occupant in order to subdue him or deter him from interfering with the plan to steal.94 115 In rejecting the prosecution case of common law murder pursuant to an EJCE, the judge was not satisfied that Mr Howell foresaw that, in the course of the joint enterprise, one of the defendants might cause grievous bodily harm or death with murderous intent.95 116 Further, in rejecting the prosecution case of constructive murder pursuant to a JCE, the judge was not satisfied that Mr Howell agreed to the possibility of violence of the same general nature as that which occurred; that is, the possibility of the use of the bat to strike the occupant to the head with sufficient force to fracture his skull (as opposed to using it to subdue the occupant without striking him to the head with this force or otherwise inflicting grievous bodily harm or death).96 92 Reasons [568]. 93 Reasons [515]. 94 Reasons [514], [516]. 95 Reasons [532]-[534]. 96 Reasons [559]-[560]. -- 33 of 84 -- [2026] SASCA 71 S Doyle JA 30 117 However, in accepting the prosecution case of manslaughter pursuant to an EJCE, the judge was satisfied that Mr Howell foresaw the possibility that the bat might be used to subdue the occupant in a manner causing serious injury to him.97 The Director’s appeal 118 The Director of Public Prosecutions seeks permission to appeal on three grounds. 119 Ground 1 involves a contention that the judge erred in failing to determine whether, or hold that, the scope of the agreement or joint enterprise to which the appellant was party encompassed the authorisation of whatever force was necessary to effect the foundational offence of aggravated robbery. 120 Ground 2 involves a contention that the judge erred in holding that the scope of the agreement or joint enterprise to which the appellant was party did not encompass the possible commission of an intentional act of violence of the same general nature as the act(s) which caused death. 121 Ground 3 involves a contention, in the alternative to Grounds 1 and 2, that the judge’s reasons in respect of these matters were inadequate. 122 Under s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA), the Director may, with the permission of the Court, appeal ‘on any ground’ against an acquittal entered following a trial by judge alone. 123 The principles governing an appeal, and application for permission to appeal, under this section have been considered in several decisions of this Court, including R v Fitzgerald,98 R v Donovan99 and Allison (a pseudonym) v The King.100 It has been accepted that the appeal is by way of rehearing, albeit acknowledging the protean nature of this label, and that there remains some uncertainty about the precise nature and scope of the contemplated rehearing. Ordinarily, an appeal by way of rehearing involves a focus upon identifying error in the decision below. However, it usually requires that the appellate court undertake an independent review of not only any issues of law, but also the facts, including the proper inferences to be drawn from the evidence. The appropriateness of this broad approach to the identification of error is supported in the present context by the specification that the appeal may be ‘on any ground’. 124 At the same time, it has also been accepted that the public interest concern to avoid exposing defendants to double jeopardy will inform the Court’s approach to its jurisdiction under s 157(1)(b)(i). The appellate restraint which this concern requires has a role both in determining whether there should be a grant of 97 Reasons [566]. 98 R v Fitzgerald (2023) 307 A Crim R 101; [2023] SASCA 34 (Fitzgerald). 99 R v Donovan [2025] SASCA 7. 100 Allison (a pseudonym) v The King [2025] SASCA 33. -- 34 of 84 -- [2026] SASCA 71 S Doyle JA 31 permission to appeal, and in determining the relief, if any, which might be granted upon the identification of error. 125 With this framework in mind, the statement of principles in R v Fitzgerald101 should be understood as providing guidance, rather than any rigid rules, as to the Court’s exercise of its jurisdiction in relation to appeals against acquittals under s 157(1)(b)(i). In particular, whilst the Court may more readily intervene in the case of an error of law, or an error of general principle, the court’s intervention is not confined to cases involving errors of this type. In an appropriate case, other errors, such as errors in the application of principle to the facts, in the inferences to be drawn from facts, or indeed in the findings of fact, may warrant the Court’s intervention. While the Court will not ordinarily, or lightly, intervene so as to address issues of fact, whether permission is granted, and whether the Court grants the relief sought, will depend upon the nature and consequences of the error, and the circumstances of the case more generally. 126 The Director’s proposed grounds of appeal raise some significant issues of principle in relation to the operation of the doctrines of JCE and EJCE in the context of a charge of murder, in particular where the case involves an allegation of constructive murder. As will be seen, the Director’s proposed appeal raises for consideration the rationale for, and content and application of, the requirement, in a case alleging constructive murder pursuant to a JCE, that the agreement encompass violence of ‘the same general nature’ as that which caused death. The grounds sought to be raised are reasonably arguable. In my view, the issues sought to be raised are of sufficient substance and significance to warrant this Court’s consideration, and the present case is an appropriate vehicle for them to be considered. I am satisfied that the public interest in this Court’s consideration of the grounds sought to be raised outweighs the concern to avoid exposing Mr Howell to a risk that his acquittal might be set aside. Whilst this concern to avoid further vexing an accused person is undoubtedly a weighty matter in the case of a prosecution appeal against an acquittal – particularly in the present case where a successful appeal would result in Mr Howell being tried for a third time – it is outweighed in the circumstances of the present case by the public interest in addressing the issues sought to be raised by the Director. 127 For these reasons, I would grant the Director permission to appeal. However, whether that appeal is ultimately to be allowed may depend upon the nature of any error that might ultimately be identified. The scope of the agreement – violence of ‘the same general nature’ 128 Grounds 1 and 2 are related in that both challenge, in slightly different ways, the judge’s conclusions as to the scope of the agreement or JCE in which she found that Mr Howell participated. They both focus upon the scope of the agreement or 101 Fitzgerald at [54] (Doyle, Bleby and David JJA). -- 35 of 84 -- [2026] SASCA 71 S Doyle JA 32 JCE in the context of the prosecution’s second pathway to guilt of murder, namely through constructive murder and applying the principles of JCE. 129 As set out above, the judge found that the scope of the agreement included the possible use of the bat to threaten or apply force to (including strike and cause injury to) the occupant in order to subdue him or deter him from interfering with the plan to steal.102 However, the judge found that the second pathway to guilt of murder was not made out because the agreement or JCE did not include the possibility of violence of ‘the same general nature’ as that which occurred; that is, the possibility of the use of the bat to strike the occupant to the head with sufficient force to fracture his skull (as opposed to using it to subdue the occupant without striking him to the head with this force or otherwise inflicting grievous bodily harm or death).103 130 Ground 1 challenges the judge’s approach on the basis that she did not grapple with, or at least erroneously rejected, the prosecution case that the agreement was to use any, or whatever, force was necessary to achieve the plan to steal cannabis from the grow house. As such, the force used was within the scope of the agreement. 131 Ground 2 challenges the judge’s rejection of the prosecution argument that the scope of the agreement included the possibility of violence of the same general nature of that which occurred. In particular, the Director argues that the judge erred in this respect in drawing a distinction between: (i) violence for the purpose of subduing the occupant of the grow house (but including striking him with a bat and a risk of serious injury); and (ii) violence involving aggressively striking the occupant to the head with sufficient force to fracture his skull. 132 In developing his submissions in support of these grounds, the Director did not challenge any of the judge’s primary findings of fact. His submissions were focussed upon a challenge to the ultimate inferences drawn, and conclusions reached, by the judge. Further, as developed orally, the Director’s submissions very much focussed upon the issues raised by Ground 2. 133 In addressing the Director’s submissions, it is convenient to commence with the High Court’s reference, in the context of applying the principles of JCE to constructive murder, to a requirement that the scope of the agreement include the possible commission of an intentional act of violence of the ‘same general nature’ as that which occurred. 134 As outlined earlier in these reasons, in Mitchell, Gordon, Edelman and Steward JJ referred to this requirement in paragraphs [65] and [108] of their joint reasons;104 and Gageler, Gleeson and Jagot JJ did so in paragraph [48] of their joint 102 Reasons [514], [516]. 103 Reasons [559]-[560]. 104 Their Honours also used this terminology in paragraph [58], in the analogous context of the foresight necessary to establish liability through the principles of EJCE. -- 36 of 84 -- [2026] SASCA 71 S Doyle JA 33 reasons, expressly adopted this expression of what was required to establish constructive murder applying the principles of JCE. 135 In my view, the High Court’s reference to violence of the ‘same general nature’ should not be understood as the introduction of a new element or requirement over and above the general principles governing constructive murder and JCE set out earlier in these reasons. Rather, their Honours were merely articulating what was inherent in the requirement that the scope of the agreement encompass the possibility of the act or acts constituting the crime which was committed, and with which the defendant has been charged. 136 This emerges most clearly from paragraph [65] of the reasons of Gordon, Edelman and Steward JJ. In that paragraph, their Honours were addressing the requirement, for the purposes of attributing criminal acts to a defendant pursuant to a JCE, that the act be within the scope of the agreement. In explaining what this entailed, their Honours said that the agreement ‘need not extend to the precise manner in which the act was committed’. Rather, it was ‘sufficient for the scope of the agreement to extend to acts of the general nature of the attributed act’. In other words, the requisite correspondence or correlation between the agreement and the act to be attributed need not be precise or specific; it need only be general. 137 Gordon, Edelman and Steward JJ illustrated this point by reference the decision of the English Court of Criminal Appeal in R v Betts.105 In that case, Betts and Ridley knew that the deceased was in the habit of taking money in a bag to the bank and, knowing the route which he took to the bank, agreed they would waylay him and rob him. Pursuant to their agreement, they hired a car and drove to the location where the deceased would pass. Ridley waited in the car while Betts robbed the man of the bag of money that he was carrying. In so doing, Betts seized the man by the neck and struck him a violent blow on the top of his head with a clenched fist, and most likely with a weapon or implement of some kind concealed within his fist. The man suffered a depressed skull bone, and died. On appeal, Ridley challenged his conviction as a principal in the second degree. He did so on the basis that, although he had agreed that the man should be robbed, and had agreed or anticipated that the man would, at least, be pushed down when the bag of money was snatched from him, he was not a party to an agreement that violence of any kind should be used.106 In rejecting this argument, the Court held that even though Ridley had not agreed that the man would be struck on the head in a way likely to cause his death, he was nevertheless liable for what occurred. Their Honours drew a distinction between a situation in which the principal acts in a way which varies ‘totally and substantially’ from what had been agreed, and a situation where the only variance is ‘in the circumstance of time or place, or in the manner of execution’. In their Honours’ view, Ridley was in the latter situation, and thus properly convicted of felony murder. Even though Betts’ conduct ‘did vary in the manner of execution of this agreed plan to rob’, it was sufficient in the 105 R v Betts (1930) 22 Cr App R 148. 106 R v Betts (1930) 22 Cr App R 148 at 151-152, 154 (Avory, Swift and Charles JJ). -- 37 of 84 -- [2026] SASCA 71 S Doyle JA 34 circumstances of that case that there was a plan to rob ‘with some degree of violence’.107 138 Gordon, Edelman and Steward JJ also footnoted several other cases on the same issue. It is to be acknowledged that some of those cases include support for agreements to commit a robbery or other felony described in terms which encompassed the commission of any act of violence which might become necessary for the furtherance or completion of that purpose.108 At the same time, and whilst admittedly approaching the issue at a relatively high level of generality, those same cases acknowledge that there are limits to what it may be inferred was within the scope of the parties’ agreement. Liability will not extend, for example, to acts which are ‘quite foreign’ to,109 or otherwise beyond,110 the agreed purpose. In other words, it is not necessarily enough that the agreement contemplated some use of violence. Questions of fact and degree inevitably enter the equation when determining whether the act of violence that occurred was a possibility encompassed within the agreement. 139 In support of this, it is noteworthy that earlier in their reasons, when using the same terminology of acts of ‘the general nature’ of what occurred (albeit in the context of a consideration of what the defendant foresaw, as opposed to agreed), Gordon, Edelman and Steward JJ cited passages from academic works by Glanville Williams and E Patrick Hartt.111 140 In his text, Williams considered the decision in R v Betts. After observing that the Court in that case concluded that what Betts did was merely a variation in the manner of execution of the agreed plan to rob, he posed the question whether it would have made a difference had Betts chosen to use a knife or a revolver. Whilst acknowledging that there may not be a substantial difference between using a knife and hitting a man on the head with a weapon, Williams considered that Ridley would not have been liable because the act would have been ‘altogether outside the common purpose’. 141 Williams went on to consider two hypothetical variants of the facts in R v Appleby,112 concluding that liability would not extend to circumstances where the violence used was ‘altogether different in kind from that agreed’: Appleby and his companion were housebreakers who agreed to resist arrest by violence; the companion used a gun, with fatal results, and Appleby was held to be implicated in the 107 R v Betts (1930) 22 Cr App R 148 at 154-155 (Avory, Swift and Charles JJ). 108 For example, R v Dowdle (1900) 26 VLR 637 at 639-640 (Williams J); R v Kalinowski (1930) 31 SR(NSW) 377 at 380 (Davidson, Halse Rogers and Stephen JJ). 109 R v Kalinowski (1930) 31 SR(NSW) 377 at 380 (Davidson, Halse Rogers and Stephen JJ) (referring to a sexual act in the course of a robbery). 110 R v Dowdle (1900) 26 VLR 637 at 640 (Williams J) (referring to a ‘violent shove into a yard’ in the context of a plan merely to ‘hustle’ a drunk man and pick his pockets). 111 Mitchell at [58] (Gordon, Edelman and Steward JJ), citing Williams, Criminal Law (1953), pp 216-218, and Hartt, ‘Parties to the Offence of Murder’ (1958) 1 Criminal Law Quarterly 178 at 181. 112 R v Appleby (1940) 28 Cr App R 1. -- 38 of 84 -- [2026] SASCA 71 S Doyle JA 35 murder. … The question can perhaps be clarified by taking two hypothetical cases. (1) Suppose that Appleby and his companion had agreed that if surprised by a watchman they would overpower him with their hands and tie him up. This would have been an intent to resist arrest by violence, and it if had been carried out and the watchman had accidentally been killed, both might have been guilty of murder. (2) Suppose that, with the agreement as before, Appleby’s companion had used a gun which Appleby did not know he was carrying. It is submitted that that would have been an act outside the common purpose, for which Appleby would not have been responsible. Notwithstanding the language of the judgment, an agreement to use violence does not implicate the principal in the second degree if the violence used is altogether different in kind from that agreed. 142 Hartt made observations to similar effect. After referring to R v Betts, where liability attached to Ridley despite Betts using a greater degree of violence than had been agreed, Hartt suggested that where limited violence had been agreed, the introduction of a weapon from which death results might be outside the scope of the agreement with the result that liability does not attach. Hartt added that ‘the whole matter’ had been dealt with in the passage from Williams’ text referred to above. 143 In my view, the approach taken by the High Court in Arulthilakan v The Queen113 is consistent with the above. That case involved the application of the principles of JCE to constructive murder under s 12A of the CLCA. The co- accused of the two appellants stabbed and killed a person in the course of a robbery. However, both appellants were party to an agreement to ‘roll’ the deceased, and were aware that their co-accused was in possession of the knife which was used. Indeed, as the Court explained, they were plainly anticipating violence:114 The plan upon which the appellants and [their co-accused] embarked upon was to ‘roll’ Hillam in order to obtain his mobile telephone. That involved robbery, accompanied, if necessary, by force. Perhaps there was a theoretical possibility that Hillam would hand over the telephone without resistance, but the three intending robbers had, between them, two knives and a cosh. They were not intending to rely on their powers of verbal persuasion. They had equipped themselves to deal with resistance. The appellants knew [their co-accused] was armed. It was not difficult to infer why he was armed. 144 In referring back to this case in Mitchell, Kiefel CJ explained that liability attached because the plan ‘involved robbery accompanied if necessary by force and the use of force was therefore within the scope of the agreement’.115 In circumstances where there was no real issue that the violence that did occur was a possibility within the scope of the agreement, there is no difficulty with the agreement being formulated in these terms. There was no occasion or need to consider whether the violence that occurred fell outside the type or nature of the violence that had been agreed as a possibility. However, I do not understand the decision in Aruthilakan v The Queen, or Kiefel CJ’s reference to it in Mitchell, to suggest that it may not be necessary in other cases to focus more closely upon the 113 Arulthilakan v The Queen (2003) 78 ALJR 257. 114 Arulthilakan v The Queen (2003) 78 ALJR 257 at [29] (the Court). 115 Mitchell at [19] (Kiefel CJ). -- 39 of 84 -- [2026] SASCA 71 S Doyle JA 36 correlation between the nature of the possible violence that had been agreed, and the violence that was used and caused death. 145 It is appropriate at this point to mention the decision of Wright J in R v DJD116 in relation to the application of the doctrine of JCE to constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW). In addressing the need for the scope of the agreement to encompass the possibility of the act of violence which caused death, his Honour said:117 The degree of specificity required in respect of the accused’s agreement as to the possible use of violence will depend on the circumstances of each individual case. Nonetheless, where an offence may be accompanied by some form of violence and the participants in a joint criminal enterprise to commit that offence have no reason to be specific about the particular form of violence, in my view there does not have to be agreement to the specific type of violent act actually done before that act can be attributed to other participants in the joint criminal enterprise. For example, if the parties to an assault with intent to rob in company armed with a dangerous weapon agree to the use of force or violence accompanying the commission of that offence, if necessary, then for the purposes of attribution of an act of one of the participants to the other, it should not matter whether the violence actually used was by way of shooting, wounding with a knife or screwdriver, hitting with a heavy vase found at the scene, or bashing the deceased. In such a case, it is the possible use of force or violence generally not the particular type of violence which was agreed to and which gives rise to the attribution of the acts to the participants who agreed. This conclusion is consistent with the comments and examples referred to by the High Court in Mitchell. These include what was noted by Kiefel CJ when discussing the application of the doctrine of joint criminal enterprise in the context of s 12A of the South Australian Criminal Law Consolidation Act. … 146 Wright J proceeded to refer to the High Court’s reasons in Mitchell, quoting from both the reasons of Kiefel CJ addressing Aruthilakan v The Queen,118 and the passage from the joint reasons of Gordon, Edelman and Steward JJ in which their Honours said that the agreement must include the possible commission of an intentional act of violence of ‘the same general nature’ as that which caused the death.119 Wright J then added:120 The additional element referred to by the three justices as being agreement to ‘the possible commission of an intentional act of violence of the same general nature as that which caused the death’ reflects, in part, the wording of s 12A which requires that the death be caused by an ‘intentional act of violence’. Nonetheless, the formulation adopted also indicates that the agreement required does not have to be to the specific act of violence which actually occurred. For all of these reasons, in the context of s 18(1)(a) of the Crimes Act and in the circumstances of this case, in order for the act of the participant who stabbed Mr Kourtis 116 R v DJD (2023) 111 NSWLR 193 (R v DJD). 117 R v DJD at [51] (Wright J). 118 Mitchell at [19] (Kiefel CJ). 119 Mitchell at [108] (Gordon, Edelman and Steward JJ), with which Gageler, Gleeson and Jagot JJ agreed at [48]. 120 R v DJD at [54]-[55] (Wright J). -- 40 of 84 -- [2026] SASCA 71 S Doyle JA 37 to be attributed to each of the accused, the Crown is required to prove beyond reasonable doubt that the accused was a participant in the joint criminal enterprise to commit the foundational offence and also agreed that the foundational offence would, if necessary, be accompanied by force or violence. The Crown does not have to prove that each accused agreed specifically to the possible use of a knife or to the possible wounding of the deceased accompanying the commission of the foundational offence. 147 The Director relies upon these passages from Wright J’s reasons as supporting the approach contended for by the prosecution in the present matter. In particular, he contends that they support an approach which accepts that if the defendant agreed that the foundational offence would, if necessary, be accompanied by force or violence, then that would be enough to bring the act of violence which occurred within the scope of the agreement for the purposes of establishing liability for murder. 148 The first difficulty with the Director’s reliance upon Wright J’s reasons in R v DJD is that his Honour’s analysis was overruled by the New South Wales Court of Criminal Appeal in Coskun v R.121 That said, as the reason for overruling it was that it involved an attempt to apply the reasoning of the High Court in Mitchell without adequate regard to the differences between the constructive murder provision in s 18(1)(a) of the Crimes Act and the common law and South Australian provision under consideration in Mitchell, his Honour’s observations may still carry some persuasive value in this jurisdiction. 149 More fundamentally, however, I do not agree that Wright J’s reasons support the Director’s approach. In my view, Wright J said nothing more than that in some cases it will be appropriate to approach the matter at this level of generality. As has been explained, it was appropriate to approach the matter at this level of generality in Arulthilakan v The Queen. However, as Wright J explained in the opening sentence of the first passage extracted from his reasons, the degree of specificity required will depend on the circumstances of each individual case. Whilst accepting that it will not ordinarily be necessary that the agreement encompass the possibility of ‘the particular type of violence’ used, or ‘the specific act of violence’ which occurred, nothing his Honour said was inconsistent with a requirement that the agreement encompass the possibility of violence of the ‘same general nature’ as that which occurred. To the contrary, his Honour, unsurprisingly, embraced this formulation through his reference to the reasons of Gordon, Edelman and Steward JJ from Mitchell. 150 Understood in this way, Wright J’s reasons leave open the possibility of circumstances which might, in an appropriate case, justify a conclusion that an agreement that encompasses the use of some violence does not extend to the possibility of violence of the same general nature as that which occurred. 121 R v Coskun (2024) 114 NSWLR 374 at [57] (Kirk JA, Wilson and Ierace JJ); see also Batak v The King (2024) 111 NSWLR 313. -- 41 of 84 -- [2026] SASCA 71 S Doyle JA 38 151 Against this background, it is appropriate to turn to whether the circumstances of the present matter justified Stein J’s adoption of such an approach. 152 The operative sections of Stein J’s reasons have been summarised earlier in these reasons. Critically, her Honour drew a distinction between: (i) violence for the purpose of subduing the occupant of the grow house (but including striking him with a bat and a risk of serious injury); and (ii) violence involving aggressively striking the occupant to the head with sufficient force to fracture his skull. In her Honour’s view, although the agreement between the parties encompassed a possibility of the former, it did not encompass a possibility of the latter. 153 It is apparent that there were two aspects to her Honour’s distinction between the violence that was agreed and the violence that occurred. The first was grounded in the purpose of the violence, with the agreed purpose being violence to subdue. Her Honour drew a distinction between violence for this purpose, and the violence that occurred, being more aggressive, if not gratuitous, in its purpose. The second was grounded in the degree or severity of the violence, with the agreed violence extending to striking with a risk of serious injury, and the violence that occurred involving striking to the head with sufficient force to fracture the victim’s skull. 154 In addressing the second aspect of the distinction drawn by Stein J, it is true that her Honour at times made reference to the consequence of the violence (referring to the violence being sufficient ‘to fracture the victim’s skull’, and to it being ‘fatal’ or ‘lethal’). Properly understood, however, the focus of the second aspect of her Honour’s distinction was upon the degree of severity of the violence inflicted rather than the consequences. Her Honour’s references to the potential consequences of the violence, or risks associated with the violence, were by way of elaboration upon the degree or severity of the violence, rather than suggesting a focus upon the consequence of the violence per se. Her Honour was right to focus upon the degree or severity of the violence, rather than the consequences of that violence, given that the issue is whether the violence that occurred, and not the consequence that occurred, was of the same general type as that which was agreed. 155 In my view, there is no conceptual difficulty with either aspect of the distinction drawn by her Honour. Both a difference in the purpose of the violence, and a difference in the degree or severity of the violence, may, in an appropriate case, constitute a difference in the ‘general nature’ of the violence. They may do so individually, and certainly may do so in combination. In other words, where an agreement is confined to the possible use of low level violence in order to subdue a person, the occurrence of high level violence which goes well beyond what might be necessary to subdue that person may, depending upon the circumstances of the particular case, aptly be described as violence which is not of the ‘same general nature’ as that which had been agreed as a possibility. Put in positive terms, it may aptly be described as violence which falls outside the scope of the agreement -- 42 of 84 -- [2026] SASCA 71 S Doyle JA 39 because it is violence of a different general nature to, or fundamentally different in kind from, the possibility of violence that had been agreed. 156 The typical case in which there might be a relevant difference between the violence agreed and the violence that occurred is where the latter involves the introduction of a weapon when the agreement did not include the use of any weapon at all. A relevantly fundamental departure from what had been agreed as possible might fairly readily be inferred in that situation. 157 However, such an inference will not always be appropriate. As was seen in R v Betts, the mere fact that the primary offender used an implement (concealed in his fist, without the knowledge of the secondary offender) which had not been agreed did not take the violence outside the scope of the agreement. In the circumstances of that case, this was a mere difference in the manner of execution, and not a departure from the type of violence which had been agreed as possible. 158 Difficult issues may also arise in cases where the weapon used differs from the one agreed to, or where an agreed weapon is used in a manner or for a purpose which has not been agreed as a possibility. 159 The English courts have grappled with issues of this nature in the so-called ‘knowledge-of-the weapon’ cases. In addressing the scope of a secondary party’s responsibility for murder pursuant to a joint enterprise or common purpose, those cases have considered the circumstances in which there is a sufficiently fundamental difference between what is agreed or foreseen and what occurs to prevent a secondary party being liable for the consequences of a principal’s criminal violence. 160 In R v Powell (Anthony),122 the secondary party had agreed to participate in an attack using wooden posts, but the primary offender used a knife and killed the victim. In holding that the secondary party should have been acquitted if he had not foreseen the possible use of a knife, the House of Lords accepted that the use of a knife was fundamentally different from, and hence outside the scope of, the parties’ agreement. However, their Lordships added that if the weapon used had merely been ‘different to, but as dangerous as’ the weapon which the secondary contemplated might be used, then the secondary party should not escape liability for murder. 161 In R v Rahman,123 the four accused men, with others, and armed with blunt instruments, attacked the victim, but the cause of death was a stab wound. It was not possible on the evidence to identify the principal offender. In the House of Lords, the majority formulated their approach in terms that the secondary party (B) would not be liable for murder if: (i) the principal offender (A) suddenly produces and uses a weapon, of which B knows nothing, and which is more lethal than any 122 R v Powell (Anthony) [1991] 1 AC 1 at 30 (Lord Hutton). 123 R v Rahman [2009] 1 AC 129 (Rahman). -- 43 of 84 -- [2026] SASCA 71 S Doyle JA 40 weapon which B contemplates that another participant may be carrying; and (ii) for that reason, A’s act is to be regarded as fundamentally different from anything foreseen by B.124 Lords Bingham and Scott, on the other hand, took an approach which focussed more upon the purpose of the agreed enterprise than the type of weapon anticipated. 162 Lord Bingham, for example, saw the case as turning on the principle that ‘a radical departure by the primary killer from the foreseen purpose of an enterprise’ might relieve the secondary party of liability, adding:125 … The greater the difference between the acts and behaviour in question and the purpose of the enterprise, the more ready a jury may be to infer that the particular defendant did not foresee what the other participant would do. 163 To similar effect, Lord Scott said:126 … It seems to me beside the point that the secondary party may not have known the killer to be carrying the weapon actually used to effect the killing and I do not understand how his criminality can be held to depend on whether the killing stroke was effected by the club the killer was known to have carried or by the knife that he was not known to have carried. It would, of course, be necessary that the killing stroke should have been an act within the scope of the joint enterprise on which the parties had embarked but if the parties embark on a punishment exercise that carries with it the foreseeable possibility of death of the victim the instruments used for that purpose seem to me of much less important than the purpose itself. 164 To summarise the approach adopted in the English cases, common purpose liability relevantly turns on whether the actions of the principal were ‘fundamentally different’ from those foreseen by the secondary party. The determination of this issue will be heavily influenced by the secondary party’s knowledge of the weapon used, and whether it was a weapon of equivalent or greater dangerousness than any weapon that the secondary party contemplated might be used. However, the determination of this issue is not necessarily controlled by the secondary party’s knowledge of the weapon used, as this needs to be considered in the context of the purpose of the joint enterprise. 165 The Supreme Court of New Zealand considered these English cases in Edmonds v The Queen.127 In attempting to ensure an appropriate correlation between what had been agreed or foreseen, and the criminal acts for which liability will attach, their Honours supported a broader focus upon the circumstances and agreed purpose, as opposed to the secondary party’s knowledge of the particular weapon that might be used. Their Honours explained:128 124 Rahman at [68] (Lord Brown); see also [47] (Lord Rodger), [104] (Lord Neuberger). 125 Rahman at [16] (Lord Bingham). 126 Rahman at [31] (Lord Scott). 127 Edmonds v The Queen [2012] 2 NZLR 445 (Edmonds). 128 Edmonds at [45] (William Young J, delivering judgment for the Court). -- 44 of 84 -- [2026] SASCA 71 S Doyle JA 41 Although the English courts have now reached the position that the application of the ‘fundamentally different’ test is not confined to knowledge-of-the-weapon considerations, such considerations still seem to be of central importance. This is despite the reality that the magnitude of the risk of death (or other serious injury) recognised by the alleged party cannot be accurately assessed by reference primarily to whether that party knew of the presence of the fatal weapon or one which was similarly lethal. A knife intended to be used only in extremis and in self-defence may pose far less risk of harm than a baseball bat which is to be used against the head of the victim. The likelihood of serious injury or death predominantly depends on the personalities and intention of those engaged. Relevant to this will be their states of emotional arousal, whether they have consumed alcohol or drugs and similar considerations. Far more important than the precise nature of the particular weapons they have is what they intended to do with them. So treating party liability as dependent on awareness that one or more of the participants were armed with the weapon used by the principal (or an equally dangerous weapon) cannot produce anything like a precise correlation of common purpose liability with the accuracy of the alleged party’s foresight of the extent of the risk of death or serious injury. As well, legal principles which depend on a comparison of the dangerousness of weapons encourage attempts to make unmeritorious (and perhaps faintly ludicrous) distinctions. 166 In my view, these authorities support the potential relevance of both the purpose and degree of the violence in determining whether the prosecution has established the requisite correspondence between the violence that was agreed and the violence that occurred; that is, in determining whether the violence that occurred was of the same general nature of that which had been agreed as a possibility, or was fundamentally different in some way. Whilst the defendant’s agreement to, or knowledge of, the type of weapon to be used will often be significant in this determination, its significance will depend on the circumstances of the particular case. Those circumstances may include the personalities and states of emotional arousal or intoxication of the people involved, and any other matters bearing upon their intentions, purpose and potential use of any weapons or implements in their possession. 167 In summary, there is no conceptual difficulty with an approach, reflected in the approach taken by Stein J in the present case, which involves acceptance that the defendant agreed to the possibility of some violence, and even some violence with the weapon that was used, but a conclusion that the violence that occurred was nevertheless not of the same general nature as that which had been agreed. At the same time, it is fair to say that inferring a limit upon the nature of the violence that has been agreed as a possible incident of a JCE, or even allowing for the reasonable possibility of such a limit, should be approached with some caution. There must be some basis in the evidence for the limit. In circumstances where the defendants have agreed to use violence in order to commit a crime, and there is no reason for them to have turned their minds to the nature of the violence that might be involved, it may be difficult to find a basis for inferring or allowing for a relevant limit upon the nature of the violence that has been agreed. That is particularly so bearing in mind that agreement to violence of a particular nature as a possibility does not require an intention, let alone desire, that violence of that nature will be used. The agreement to violence of that nature may be contingent and reluctant. -- 45 of 84 -- [2026] SASCA 71 S Doyle JA 42 168 In making these observations, I have not overlooked that the onus lies on the prosecution to establish the breadth of the agreement; and hence that the onus lies on the prosecution to establish that the agreement extended to the possibility of violence of the same general nature as that which occurred and caused death. However, the point being made is that where the prosecution has established beyond reasonable doubt that the defendants agreed to the possibility of violence using a weapon, it may be difficult to identify any limit upon the breadth of the possible violence encompassed within that agreement. 169 The Director contends that, even if there was no conceptual difficulty with the approach taken, and the distinction drawn, by Stein J in the present case, it was not supported by the evidence. Before addressing this contention (which is the focus of Ground 2) more directly, it is convenient to first address the Director’s contention that is the subject of Ground 1. Ground 1 – failure to properly consider the prosecution’s second pathway 170 Through Ground 1, the Director contends that Stein J failed to grapple with, or erroneously rejected, the prosecution case that the agreement to which Mr Howell was a party was an agreement to use any, or whatever, force was necessary to achieve the plan to steal cannabis from the grow house. 171 In support of this contention, the Director argues that the judge erred, or at least distracted herself from the appropriate question, by focussing upon whether or not Mr Howell had agreed to violence that included the possibility of lethal or fatal violence. It is true that Stein J said (in paragraphs [521]-[522]) that the evidence did not establish that the agreement included the possibility of lethal or fatal force. However, read in context, these passages do not demonstrate any misunderstanding by her Honour of either the prosecution case, or the issues to be determined. These passages were merely the first step in her Honour’s reasoning towards a rejection of the argument that the agreement extended to the use of any level of violence (paragraphs [515], [521]), or whatever force was necessary, and ultimately concluding that the agreement was limited to the possibility of violence to subdue. The first step in this reasoning was a finding that the agreement did not include the possibility of lethal or fatal force. This finding was supported by the fact that the men were armed only with a bat, and not knives or guns. The second step in her Honour’s reasoning was a finding (paragraphs [559]-[560]) that it was reasonably possible that the agreement was confined to the use of the bat to subdue (even if by striking and causing serious injury to the occupant), as opposed to use of the bat to strike aggressively with sufficient force to fracture the occupant’s skull. It was through these two steps that Stein J ultimately concluded that the prosecution had not established that the agreement encompassed the possibility of violence of ‘the same general nature’ as that which occurred. 172 The judge’s first step and finding did not involve any misunderstanding of the prosecution case. It did not involve any misunderstanding to the effect that the prosecution case involved an agreement to use lethal force, in the sense of an -- 46 of 84 -- [2026] SASCA 71 S Doyle JA 43 agreement to kill or commit grievous bodily harm. As the Director correctly points out, the prosecution did not allege common law murder by JCE. Its case for common law murder was confined to a case invoking the principles of EJCE. But the judge’s reference to lethal force was not addressing a perceived case of common law murder by JCE. Rather, as explained, it was simply a step in her rejection of an agreement framed in terms of an agreement to use any or whatever force was necessary to achieve the plan to steal cannabis, and in support of her ultimate conclusion in the context of the second pathway to guilt (constructive murder through JCE) that the agreement was limited in terms of the violence it encompassed. 173 It is not to the point that the two steps in the judge’s reasoning, and two findings, were made in separate passages of her Honour’s reasons. Even though related in the way I have described, it was understandable and appropriate that the first was made in the context of her Honour’s initial consideration of the scope of the parties’ agreement (which was relevant to both pathways to guilt contended for by the prosecution), and the second was made in the context of her Honour’s reasoning directed squarely to the second pathway of constructive murder through participation in a JCE. 174 When understood in this way, it is apparent that Stein J has neither misunderstood, nor failed to address, the prosecution’s second pathway to guilt. The Director’s submissions to the contrary should be rejected. 175 As to whether the judge erred in rejecting the prosecution’s second pathway to guilt, I have already explained that it was conceptually open to the judge to find that the scope of the agreement did not extend to the possibility of any, or whatever, violence was necessary to achieve the plan to steal cannabis from the grow house. It was open to the judge to find that the agreement contemplated a more limited use of violence. Whether the evidence justified a finding to this effect is a matter to be addressed in the context of Ground 2. Ground 2 – violence not of the same general nature that was agreed 176 The Director contends that Stein J erred in finding that it was reasonably possible that the agreement was confined to the possible use of the bat to subdue (even if striking and causing serious injury to the occupant), as opposed to the possible use of the bat to strike the occupant aggressively to the head with sufficient force to fracture his skull. The Director contends that her Honour erred both in accepting that there was a factual basis for this limitation upon the agreement, and in concluding that any such limitation warranted a conclusion that the violence used was not of the same general nature as that which had been agreed. 177 In support of his challenge to Stein J’s reasons and conclusion, the Director relies upon the following features of the evidence: • Mr Howell was party to an agreement to steal cannabis from a grow house; -- 47 of 84 -- [2026] SASCA 71 S Doyle JA 44 • the agreement included Mr Howell and four other men; • Mr Howell was aware there was an occupant in the grow house likely to resist theft; • one of their number was armed with a bat, and the agreement encompassed the authorisation of the use of force to threaten and subdue the occupant to deter him from interfering in the theft; • Mr Howell was aware of the bat; • the death of the deceased was caused by a blow (or blows) from an object consistent with the bat; and • in his record of interview, Mr Howell said: that he observed Mr Rigney holding a cricket bat; that prior to entry into the grow house, Mr Rigney threatened him with the bat, including threatening to ‘cave your fucking head in’; and that he observed Mr Rigney strike the deceased across the head with the bat. 178 All of these matters were, of course, relevant to the judge’s determination of the scope of the agreement, and in particular the nature of the violence which Mr Howell and others had agreed would be a possible, even if only contingent and reluctant, incident of their plan to steal cannabis. As a result, there was no doubt, as the judge found, that the agreement encompassed some level of violence. The fact that they went in numbers, were expecting resistance from an occupant and had a weapon made this inference irresistible. 179 In considering the nature of the violence that had been agreed, because the agreement may well have been tacit, and the judge was left to infer its scope from the circumstances, it was appropriate to approach the task of determining the scope of the agreement at a relatively general level. Further, given that the men, when entering the grow house, were entering an uncertain and potentially volatile situation, and were likely to have been on edge and full of adrenaline, it was appropriate to be cautious in inferring any clear limit on the violence that had been agreed. 180 However, it did not necessarily follow that Mr Howell and others reached an open-ended agreement to use whatever violence one of their number might have decided to inflict. In my view, it remained open for the judge to accept, at least as a reasonable possibility, that Mr Howell had not agreed to violence extending beyond the use of the bat to subdue the occupant. In allowing for the possibility that the agreement was limited in this way, I do not think the judge erred in emphasising that the weapon the men took with them was a bat, rather than a knife or gun. Whilst bats can, of course, be deployed in varying ways, and can be used aggressively to cause very serious harm, the nature of the weapon was nevertheless a relevant, indeed significant, consideration in the present case. It was also -- 48 of 84 -- [2026] SASCA 71 S Doyle JA 45 relevant that the evidence only established that one of the defendants was carrying a weapon. These considerations were consistent with a purpose which was focussed upon achieving an objective of stealing the cannabis, without any agreement that there would be any serious or gratuitous violence directed towards the anticipated occupant. 181 The Director challenges the judge’s reliance upon Mr Howell’s distressed state in the aftermath of the events on the night of 8 October 2018, as described by his then partner, CD, and friends TL and JL. Whilst the judge relied upon this distress as supporting the possibility that Mr Howell had not agreed to, or even foreseen, violence of the nature that occurred (paragraph [533]), the Director submits that this distress was just as easily explained by the fact that the death of the occupant was not part of the agreed plan. Even accepting that it was not appropriate to make any clear finding as to the precise reason for Mr Howell’s distress, I see no difficulty with her Honour relying upon this evidence as supportive of the possibility which she concluded had not been excluded. 182 In summary, the matter was finely balanced. I have some reservations in accepting the limitation upon the agreed violence identified by the judge. However, the issue is not one which permits of any clear answer. There is scope for reasonable minds to differ as to the appropriate inference to be drawn. In my view, it was at least open to Stein J to draw the inference she did, and hence to allow for a reasonable possibility of the limit she identified upon the nature of the violence that had been agreed as a possible incident of the plan to steal cannabis from the Carousel Street grow house. Given Stein J’s advantage, even if relatively slight, in hearing the witnesses give evidence, and considering the evidence more generally in the atmosphere of the trial as it unfolded, I am not persuaded that Stein J was wrong to reach the conclusion and verdict that she did. 183 Further, assuming that it was reasonably possible that the agreement was limited in the way identified by Stein J, I agree with her Honour that the violence in fact perpetrated on the occupant, Mr Gjabri, was not violence of the same general nature as that which had been agreed as a possible incident of the plan to steal the cannabis. The aggressive, and seemingly unnecessary and gratuitous, striking of Mr Gjabri to his head, with sufficient force to fracture his skull, was a fundamental departure from violence for the purpose of subduing Mr Gjabri so as to enable the men to take the cannabis they had come to steal. 184 Although not strictly arising under Ground 2, I add for completeness that at times the Director’s submissions strayed beyond asserting error in the judge’s conclusion that the violence that occurred was not of the same general nature as that which had been agreed, and included the assertion of error in the judge’s conclusion that it had not been proved that Mr Howell foresaw violence involving the infliction of death or grievous bodily harm with murderous intent.129 In straying from addressing what Mr Howell had agreed, to what he had foreseen, the 129 Director’s written submissions on the Howell appeal, paragraphs [180]-[183]. -- 49 of 84 -- [2026] SASCA 71 S Doyle JA 46 Director’s submissions strayed from a challenge to the judge’s rejection of the prosecution’s second pathway to guilt (constructive murder using the principles of JCE) to a challenge to the judge’s rejection of the prosecution’s first pathway to guilt (common law murder using the principles of EJCE). Whilst there was no ground of appeal which enabled a direct challenge to the judge’s rejection of this first pathway to guilt, there is no need to consider whether the Director’s grounds might be amended to permit this challenge. There is no need because, in my view, the challenge would face the same obstacles as the challenge to the second pathway to guilt. Whilst there is obviously a conceptual difference between what Mr Howell might have foreseen as a possible incident of the plan to steal cannabis (for the first pathway) and what he agreed as a possible incident of that plan (for the second pathway), there is nevertheless a close relationship between the two. Having explained my reasons for rejecting the Director’s challenge to the judge’s conclusion that it was possible that Mr Howell had not agreed to the possibility of violence of the same general type as that which occurred, I would, for essentially the same reasons also reject any challenge to her Honour’s conclusion that it was possible that Mr Howell did not foresee the possibility of violence involving the infliction of death or grievous bodily harm with murderous intent. Ground 3 – adequacy of reasons 185 The principles governing the adequacy of a judge’s reasons are well known, and not in dispute. They were summarised by the High Court in DL v The Queen.130 186 Although Ground 3 involved a complaint of inadequate reasons, this was not the focus of the Director’s submissions on appeal. In essence the Director’s submissions under this ground were to the effect that even if Stein J’s conclusions the subject of challenge under Grounds 1 and 2 were not erroneous, her Honour did not adequately set out her reasons for the conclusions she reached. In short, I do not consider that there is any merit in this complaint. As my summary and analysis of her Honour’s reasons demonstrate, far from being inadequate, her reasons were careful and thorough. Properly understood, her reasons squarely addressed the prosecution case in respect of both pathways to guilt, and clearly exposed her reasons and conclusions in relation to each of the key steps in her Honour’s rejection of the prosecution case in relation to common law and constructive murder. This includes those aspects of her Honour’s reasons relating to the difference between the violence which her Honour considered had been agreed or foreseen, and the violence which in fact occurred and caused Mr Gjabri’s death. Conclusion 187 Even though I would grant permission to appeal, the Director has not ultimately established any error of law or principle. Although I have expressed some reservations about the judge’s factual conclusion as to the scope of the agreement to which Mr Howell was a party, I am satisfied that her Honour’s 130 DL v The Queen (2018) 266 CLR 1 at [32]-[33] (Kiefel CJ, Keane and Edelman JJ). -- 50 of 84 -- [2026] SASCA 71 S Doyle JA 47 conclusion was at least open on the evidence at Mr Howell’s trial. As this is an issue of fact only, and because allowing the appeal would expose Mr Howell to a third trial, I do not consider that any error on this issue would be an appropriate or sufficient basis for this Court’s intervention. It is therefore not necessary for me to reach a concluded view as to whether the judge’s conclusion as to the scope of the agreement was correct, as opposed to merely open. 188 For the reasons given, I would dismiss the Director’s appeal against Mr Howell’s acquittal of murder. PART C: APPEAL IN MITCHELL, RIGNEY, CARVER & TENHOOPEN The trial 189 The prosecution case against Mr Mitchell, Mr Rigney, Mr Carver and Mr Tenhoopen for the murder of Mr Gjabri involved the same two pathways to guilt as the case against Mr Howell; that is, by reason of common law murder through participation in an EJCE, or constructive murder pursuant to a JCE. 190 At a general level, the evidence in the joint trial of these men was similar to the trial evidence led in the trial of Mr Howell. At a more detailed level, there were a number of differences in the evidence between the two trials, and indeed in the evidence which was admissible against the individual defendants in the joint trial. Some of these differences are identified in the summary that follows. However, as was the case with the Director’s appeal from Mr Howell’s acquittal for murder, the appeals brought by Mr Mitchell, Mr Rigney, Mr Carver and Mr Tenhoopen against their convictions for murder are focussed upon challenges to the inferences or conclusions drawn by the trial judge (particularly as to the scope of the defendants’ agreement) rather than any challenge to her findings of primary fact. 191 In the circumstances, it is not necessary to identify in any detail the evidence that was led during the joint trial. It is sufficient to observe that it included evidence: • in relation to Mr Gjabri, the Carousel Street premises and the cannabis operation at that premises; • from investigating police officers about their investigation of, and their collection of forensic samples and other evidence from, the Carousel Street premises and surrounding areas; • from civilian witnesses in relation to observations they made of the defendants transferring the bags of cannabis from Mr Gjabri’s car to their cars in Gilbert Street, Ingle Farm; -- 51 of 84 -- [2026] SASCA 71 S Doyle JA 48 • from the forensic pathologist, Dr Charlwood, who gave evidence about Mr Gjabri’s injuries and cause of death in terms very similar to the evidence she gave at Mr Howell’s trial; • from CCTV cameras of the defendants driving and walking in the area of the Carousel Street premises, as well as evidence from two experts about some technical aspects of that footage; • from telephone towers about the location of the mobile phones connected to various of the defendants during the night of 8 October 2018; • from traffic cameras about the location of cars connected to Mr Rigney and Mr Mitchell during that night; • from Ms McCormack (Mr Tenhoopen’s then partner), Ms Carson (who was a friend of Mr Tenhoopen, and knew Mr Mitchell), Mr W (who was a cell mate of Mr Tenhoopen in late 2018) and some other civilian witnesses about matters including observations they made of, and conversations they had had with, various of the defendants;131 • of conversations with some of the defendants recorded through the use of listening devices; • of searches made of the places the defendants were living; and • from experts as to the forensic testing carried out on some of the items seized during police searches. 192 The evidence also included a record of Mr Mitchell’s evidence in an earlier trial of the same charges, as well as a record of his police interviews. 193 The judge’s reasons included a lengthy summary of the evidence led at trial. However, for the reasons explained, it is not necessary to say anything further about the detail of this evidence. The defence cases 194 McIntyre J’s reasons included a brief outline of the defence case for each defendant.132 Their cases differed in detail, including in response to the differences in the evidence as to their knowledge of what was to occur when they attended the Carousel Street premises, and their level of involvement in what occurred at those premises. But there was a similar focus, with all of them denying that they agreed to, or foresaw, the use of violence, and in particular violence of the nature that occurred and resulted in Mr Gjabri’s death. They emphasised various features of 131 This included some evidence from Mr Howell’s partner, CD, although her evidence in this trial was limited to some observations she made on the night of 8 October 2018, and did not include the admissions by Mr Howell about which she gave evidence in his trial. 132 Reasons [266]-[273]. -- 52 of 84 -- [2026] SASCA 71 S Doyle JA 49 the evidence said to support their lack of agreement to, or foresight of, any significant violence, including: the limited evidence of any sophisticated or careful planning; the possibility that the item being held by one of their number could have been picked up spontaneously as they were approaching (given that it was not able to be seen in some of the early CCTV footage); their limited attempts to avoid noise or detection whilst stealing the cannabis; and the possibility (advanced on behalf of Mr Tenhoopen) that Mr Howell went back inside the Carousel Street premises to ‘finish off’ Mr Gjabri after they had stolen the cannabis and so after any joint enterprise had been completed. The judge’s findings 195 McIntyre J found that the Carousel Street house was being used as a grow house for a sophisticated commercial cannabis operation.133 196 Based on a combination of the CCTV footage, traffic cameras and mobile phone evidence, the judge made a number of findings as to the events on the night of 8 October 2018.134 They included a finding that each of the defendants was in the vicinity of the Carousel Street premises at the time of the robbery, having arrived in Para Vista at about 11.30pm. Mr Rigney had travelled to the area from Prospect in his Holden Commodore; the others had travelled there from Murray Bridge in Mr Mitchell’s Subaru. Mr Rigney and Mr Carver were in telephone contact in the lead up to their arrival. Several figures could be seen from the CCTV footage to be walking through the surrounding streets, towards the Carousel Street grow house, arriving at that location at about 12.07am. 197 The judge accepted that a finding that one of the defendants was carrying a weapon was an indispensable link in the prosecution case, and hence needed to be found beyond reasonable doubt.135 Whilst apparently accepting that a finding that all defendants were present at the grow house was also an indispensable link, her Honour did not consider it necessary to find that they all entered the grow house.136 198 The judge acknowledged the variable, although generally poor, quality of the CCTV footage.137 However, relying primarily upon some footage from between 12.05am and 12.06am in nearby Lorraine Street, the judge found beyond reasonable doubt that there were five people in the footage, and that one of those people could be seen walking on the footpath and holding an unidentifiable elongated object which she described as a ‘pole like’ item.138 In finding that five were present in the group approaching the grow house, McIntyre J rejected Mr Mitchell’s case that he did not leave his car. 133 Reasons [279]. 134 Reasons [284]. 135 Reasons [275]. 136 Reasons [275]. 137 Reasons [285]-[286]. 138 Reasons [284], [287]. -- 53 of 84 -- [2026] SASCA 71 S Doyle JA 50 199 On McIntyre J’s findings,139 entry was gained to the Carousel Street premises shortly after 12.07am. From about 12.28am the defendants could be seen loading cannabis into Mr Gjabri’s car in the driveway of the Carousel Street premises. After being at the Carousel Street premises for around 15 to 20 minutes, the defendants left in Mr Gjabri’s car at about 12.33am. The defendants collected their cars and drove to a location in Gilbert Street, where they transferred the cannabis into their cars and abandoned Mr Gjabri’s car. Both Mr Mitchell’s Subaru and Mr Rigney’s Commodore were on the South Eastern Freeway travelling towards Murray Bridge at about 1.30am, and Mr Mitchell, Mr Carver and Mr Tenhoopen were back in Murray Bridge by about 2.00am. 200 Turning to the cause of Mr Gjabri’s death, the judge made the following findings about his injuries and death: [283] I accept Dr Charlwood’s evidence. I find on the basis of that evidence and the other evidence that: • The cause of Mr Gjabri’s death were head injuries caused by blunt force trauma. • The injuries are consistent with the use of a bat or solid pole. • The head injuries were not inflicted by a brick or bricks. • The force used to inflict the head injuries was severe in nature. • The head injuries were likely caused by more than one blow, but I cannot exclude the possibility that they were caused by one severe blow. • Mr Gjabri did not die immediately after the infliction of the head injuries. He survived for between 30 minutes and 24 hours. He moved around the house as evidenced by the blood spatter on top of cannabis remnants, attempts to exit the front door and vomit. • Mr Gjabri was not tied up nor did he have any wounds consistent with the use of knife. • The other injuries noted on Mr Gjabri’s limbs and torso are consistent with a struggle over the laundry/kitchen door and forcible efforts on the part of the robbers to keep him in the lounge kitchen area to facilitate the theft of the cannabis. 201 Despite thorough searches of the Carousel Street premises and the surrounding area, the weapon used to assault Mr Gjabri was not located.140 202 The judge addressed in some detail the use she made of the evidence of Ms McCormack and Ms Carson,141 noting the respects in which their evidence was 139 Reasons [281], [284], [289]. 140 Reasons [282]. 141 Reasons [290]-[308]. -- 54 of 84 -- [2026] SASCA 71 S Doyle JA 51 admissible against some defendants but not others. As mentioned earlier, each gave evidence of their observations of, and conversations with, some of the defendants both before and after the theft of the cannabis, with their post-theft evidence including conversations when in Queensland from 15 to 18 October 2018 with Mr Mitchell, Mr Carver and Mr Tenhoopen. Most of this evidence was only admissible as against Mr Mitchell and/or Mr Tenhoopen, although some of the Queensland evidence was also admissible against Mr Carver. The evidence of Ms McCormack and Ms Carson included various admissions by the defendants in relation to their involvement in the theft of the cannabis. However, it also included some other matters of detail. For example, Ms McCormack gave evidence that Mr Tenhoopen told her that Mr Rigney and Mr Howell were beating up the male occupant, that Mr Rigney told him to hit the male, and that he did hit him on the arm. And Ms Carson gave evidence that Mr Tenhoopen told her that a man had been tied up and hurt with bats, that he had been instructed to hit the man with a bat, and that he did so once on his arm. Ms McCormack also gave some evidence about Mr Tenhoopen telling her that when they were leaving, he saw the man looking through the window, and that Mr Howell ‘went back into the house and finished him off’.142 203 As the judge observed, some of the things that Ms McCormack and Ms Carson said they were told were supported by, or at least consistent with, the other evidence at trial. However, as the judge also observed, some of it was not. There were challenges to the credibility and reliability of both of these women, including on the basis of their heavy cannabis use. However, after setting out the relevant aspects of their evidence, the judge concluded that ‘overall’ their evidence was truthful and reliable, and accepted it save where indicated in her Honour’s reasons.143 204 The judge accepted that the evidence of Mr Mitchell, Mr Carver and Mr Tenhoopen suddenly travelling to Queensland between 15 and 18 October 2018, at a time when there was media commentary about the cannabis theft and death of Mr Gjabri, was probative of a consciousness of guilt on the part of these men in respect of the theft of cannabis. However, her Honour regarded it as neutral in relation to their responsibility for Mr Gjabri’s death, given that their trip was consistent with a desire to escape an unfair accusation of involvement in his death (in circumstances where they had been involved in a plan to steal cannabis, but not to cause harm to Mr Gjabri).144 205 McIntyre J next embarked upon a consideration of various aspects of the evidence which was only admissible or relevant in relation to particular defendants.145 Much of this related to evidence intended to establish the relevant 142 The judge’s treatment of this particular aspect of Ms McCormack’s evidence is the subject of particular challenge on appeal, and is addressed in more detail later in these reasons. 143 Reasons [308]. 144 Reasons [309]-[314]. 145 Reasons [315]-[371]. -- 55 of 84 -- [2026] SASCA 71 S Doyle JA 52 defendant’s involvement in the theft of the cannabis, as opposed to the extent of any violence which they agreed or foresaw might be used, and does not need to be addressed in detail given the focus of the issues raised on appeal. It is sufficient for the purposes of this appeal to mention the following matters in relation to the prosecution cases against Mr Tenhoopen and Mr Mitchell. 206 In the case against Mr Tenhoopen, the judge accepted the evidence of Mr W, Mr Tenhoopen’s cell mate in late 2018, to the effect that Mr Tenhoopen made admissions to him about not only his involvement in the theft of cannabis, but also the use of violence in that theft.146 As to the latter, the admissions to Mr W included statements that there had been a struggle with the occupant in a doorway, that the occupant had been hit over the head, and that the occupant was then taken to another room where the group took turns watching him while the others collected the drugs. The admissions did not include any reference to who had struck the blow to the occupant’s head, or what was used to strike that blow. The judge also accepted that a listening device recording of a statement by Mr Tenhoopen to Ms McCormack (‘oh well, shit happens hey, sometimes you have to go in and fucking hurt someone too much’) was an admission of his awareness of events on the night of the cannabis theft, including Mr Gjabri being hurt,147 and ultimately an admission of his involvement in that theft.148 207 In the case against Mr Mitchell, the judge largely rejected the version of events he gave in his evidence at the earlier trial, including that he did not have any discussion with the other defendants about what their plans were on the night of 8 October 2018, and that he stayed in the car where they parked in Para Vista and so did not attend the Carousel Street premises. The judge also found that Mr Mitchell told various lies to the police, holding that they demonstrated ‘a consciousness of guilt at least in relation to the cannabis theft.’149 The judge’s operative reasoning 208 After making detailed findings as to the primary facts, including the key findings mentioned above, McIntyre J turned to address her ultimate conclusions. 209 Her Honour commenced this section of her reasons by finding beyond reasonable doubt that there was a plan between all four defendants and Mr Howell to steal the cannabis from the Carousel Street premises.150 Her Honour then set out some brief defendant-specific reasons for reaching this conclusion.151 210 The judge next turned to whether the defendants’ plan to steal cannabis included any threat or use of force. Her Honour commenced by noting that although there was no direct evidence from any defendant as to their intentions, 146 Reasons [342], [347]. 147 Reasons [348]. 148 Reasons [350]. 149 Reasons [369]-[370]. 150 Reasons [372]. 151 Reasons [373]-[375]. -- 56 of 84 -- [2026] SASCA 71 S Doyle JA 53 Mr Tenhoopen had made some admissions to Ms McCormack, Ms Carson and Mr W. However, as there was no like evidence in respect of the other defendants, their intentions fell to be inferred from the surrounding circumstances.152 211 The judge concluded that the defendants’ agreement to steal cannabis did involve an agreement ‘to use force against any occupant in order to carry out the theft’.153 In support of this conclusion, her Honour emphasised the extent of the defendants’ planning and opportunity to discuss their plan, the likelihood that someone would be present and offer resistance, and their forceful entry and approach to the theft more generally: [377] The plan to steal cannabis may not have been sophisticated or meticulously planned but neither was it spur of the moment or opportunistic. 17 Carousel Street had been identified and was targeted. The defendants did not simply happen upon a commercial grow house. I infer that at least one of the defendants had some knowledge of this and that this information was shared between them. [378] Carver, Tenhoopen, Mitchell and JPH travelled some distance from Murray Bridge to Para Vista. Carver liaised with Rigney. All five converged near Carousel Street within minutes of each other. Each vehicle drove past the premises before parking in a nearby street. I infer that they were checking the premises before embarking on their planned activities. None of this was a coincidence. It was part of a plan between the five of them. [379] The general circumstances suggest a forceful approach to the theft of the cannabis. There were five of them. They did not gain entry to the house in a surreptitious or stealthy manner – they used body force to break through the front door. They used a similar approach to the rear door exit. Whilst the defendants may have hoped that there was no one at the house they must have been alert to the possibility that someone might be present. Cannabis is a valuable commodity. It is common for someone to reside at a grow house in order to safeguard the crop. The likelihood that there was someone at the house was reinforced by the fact the presence of Mr Gjabri’s car was obvious in the driveway. [380] The defendants walked a circuitous route from the location where they parked their cars to 17 Carousel Street. It took them approximately 25 minutes. It is inconceivable that they did not discuss their plans, including what to do with any occupant of the grow house, during that walk. The defendants must have contemplated that anyone in the house would resist their efforts to take the cannabis and might also call for backup. I find beyond reasonable doubt that the agreement to steal the cannabis involved an agreement to use force against any occupant in order to carry out the theft. … 212 McIntyre J noted the submissions by Mr Mitchell and Mr Rigney to the effect that it had not been established beyond reasonable doubt that they entered the house. Her Honour explained that it was not necessary to make a finding to this 152 Reasons [376]. 153 Reasons [380]. -- 57 of 84 -- [2026] SASCA 71 S Doyle JA 54 effect. It was sufficient to be satisfied, as she was, that they were each party to the plan, and participated in it.154 213 In reiterating her findings as to causation, the judge said that Mr Gjabri’s death was caused by ‘one or more severe blows to the head with a weapon’.155 Those blows were deliberate, voluntary and unlawful. The weapon has never been found. 214 The judge returned to the topic of the long ‘pole like’ object that one of the defendants was carrying shortly prior their arrival at the Carousel Street premises. Her Honour found that the defendants’ plan to steal cannabis included ‘the possible use of the weapon to assault any occupant’ of the Carousel Street premises: [382] I have found that footage 10 from 33 Lorraine Avenue shows one of the defendants, or JPH, walking on the footpath carrying a long pole like object shortly before they gained entry to the house. All of the co-offenders are in close proximity to each other. The presence of that object was obvious to all of them. The item was not used to effect entry or exit. Unlike the secateurs or the knife, it is not the type of item that could be used to harvest the cannabis. The injuries that caused Mr Gjabri’s death are consistent with the use of an item such as that visible in the footage. No item resembling the item in the footage was located by police either at 17 Carousel Street or in nearby streets. It was, I infer, taken away and disposed of. There would be no reason to dispose of the item if it was not used in some manner. I find that the item visible in the 33 Lorraine Avenue footage was the weapon that inflicted the fatal injuries on Mr Gjabri. [383] I am satisfied beyond reasonable doubt that the plan between Carver, Mitchell, Tenhoopen, Rigney and JPH to rob Mr Gjabri of his cannabis plants included the possible use of the weapon to assault any occupant of 17 Carousel Street. 215 As to the first prosecution pathway to guilt of murder, namely common law murder through participation in an EJCE, the judge acquitted the defendants on the basis she was not satisfied beyond reasonable doubt that any of them foresaw that one or more of their number might use a weapon to assault the occupant with the intention of causing him death or grievous bodily harm: [384] Murder contrary to s 11 of the CLCA by extended joint criminal enterprise requires the foresight by each defendant that one of their number might, with murderous intent, inflict GBH or death. I am satisfied that the plan between Carver, Mitchell, Tenhoopen, Rigney and JPH to rob Mr Gjabri of his cannabis plants included the possible use of the weapon to assault any occupant of 17 Carousel Street. In relation to Tenhoopen and Carver, there is cogent evidence that they were both shocked and distressed when they found out about Mr Gjabri’s death. I do not have any evidence about Mitchell or Rigney’s state of mind on finding out about the death. I do, however, accept the submission that it was unnecessary and indeed counterproductive for the defendants to kill or inflict serious harm to any occupant of the house in order to steal the cannabis. I cannot be satisfied that the defendants contemplated that one or more of their number might use a weapon to assault 154 Reasons [380]. 155 Reasons [381]. -- 58 of 84 -- [2026] SASCA 71 S Doyle JA 55 Mr Gjabri with the intention of causing him death or GBH. In those circumstances I acquit the defendants of murder by extended joint criminal enterprise. 216 As to the second prosecution pathway to guilt of murder, namely constructive murder pursuant to a JCE, the judge convicted the defendants on the basis that she was satisfied that the act of intentional act of violence that occurred in furtherance of the robbery and caused Mr Gjabri’s death was an act of ‘the same general nature’ as that which had been agreed (namely, an assault with the weapon they were carrying): [385] The robbery was a major indictable offence as defined in s 12A of the CLCA. I am satisfied that hitting Mr Gjabri forcefully over the head with a weapon on one or more occasions caused his death. I am further satisfied that it was an intentional act of violence that occurred during the course, or in furtherance, of the robbery. I am satisfied that whoever inflicted the fatal blow or blows is guilty of constructive murder under s 12A of the CLCA. The identity of the offender or offenders who inflicted the fatal blow or blows has not been established on the evidence. The defendants can only be convicted of murder under s 12A as secondary offenders if the prosecution has proven beyond reasonable doubt that, as part of their agreement to commit the robbery, each of the defendants agreed to an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death. As outlined above, I am satisfied that the planned robbery included an agreement, if necessary, to assault any occupant of the grow house with the weapon I find that the defendants took with them. An assault with the weapon is an intentional act of violence of the same general nature as that which killed Mr Gjabri. Accordingly, I am satisfied that each of the defendants is guilty of murder under the pathway provided by s 12A of the CLCA. 217 As her Honour observed in concluding her reasons, having convicted the defendants of murder, it was not necessary for her to consider the prosecution’s alternative case for manslaughter.156 The grounds of appeal 218 There is a significant overlap between the grounds of appeal and submissions advanced on behalf of each of the four defendants the subject of the joint trial. It will be convenient to address many of their complaints collectively. That said, and as will become clear, there are some complaints which focus upon the cases against individual appellants. Unreasonable verdict 219 Each of the appellants allege that their verdict of guilty of murder was unreasonable.157 Although differing in their detail, there was a common theme to the appellants’ submissions in support of this ground, namely that the evidence did not support the judge’s conclusions that: (i) the ‘pole like’ item in the CCTV footage was used to inflict the fatal blow(s) upon Mr Gjabri; (ii) the defendants agreed to the possibility of violence in the course of their plan to steal cannabis 156 Reasons [385]. 157 Mitchell Ground 1; Carver Ground 2; Rigney Ground 6, Tenhoopen Ground 1. -- 59 of 84 -- [2026] SASCA 71 S Doyle JA 56 from the Carousel Street premises; (iii) the violence that occurred was of the same general nature as that which had been agreed as a possible incident of the agreed joint enterprise; and (iv) the fatal blow or blows occurred during the course of the agreed joint enterprise. 220 Significantly, the appellants’ challenge to the judge’s conclusions in relation to these matters, and thereby to her Honour’s ultimate conclusion of guilt, involve a challenge to the inferences and conclusions drawn from the prosecution’s circumstantial case as a whole. They do not involve any challenge to the judge’s findings of primary fact. 221 Although (iii) and (iv) include submissions in support of the unreasonable verdict ground, they also raise separate issues. I have addressed these in subsequent sections of these reasons. Principles governing a complaint of unreasonable verdict 222 The principles governing a complaint that a verdict is unreasonable are not in dispute. They are the principles set out in M v The Queen.158 The central question the Court must ask itself is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, the question being one of fact which the Court must decide by making its own independent assessment of the evidence.159 223 The application of these principles in the context of a trial by judge alone, and a substantially circumstantial case, was considered by the High Court in Dansie v The Queen.160 As the Court emphasised in that case, the function of the appellate court is not confined to determining ‘whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried’.161 Rather, it is ‘to 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.’162 224 In summarising the effect of M v The Queen, the High Court in Dansie explained:163 The joint judgment in M made clear that "in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses". The joint judgment equally made clear how those considerations are to impact on the court's independent assessment 158 M v The Queen (1994) 181 CLR 487 (M v The Queen). 159 M v The Queen at 493 (Mason CJ, Dawson, Deane and Toohey JJ)). 160 Dansie v The Queen (2022) 274 CLR 651 (Dansie). 161 Dansie at [7] (the Court). 162 Dansie at [7] (the Court). 163 Dansie at [8]-[9] (the Court) (citations omitted). -- 60 of 84 -- [2026] SASCA 71 S Doyle JA 57 of the evidence. That was the point of the carefully crafted passage in which their Honours stated: ‘It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’ 225 Although expressed in terms of the relationship between the appellate court and a jury, the observations are equally applicable in a case where the trier of fact was a judge rather than jury. In other words, a reasonable doubt experienced by the appellate court on its independent assessment may be a doubt that a reasonable trial judge ought to have experienced, unless that doubt was capable of being resolved by the trial judge’s advantage. 226 In a substantially circumstantial case such as the present, where the challenge to the verdict turns on the inferences and conclusions to be drawn from primary facts, rather than a challenge to those primary facts, the trial judge may not have had any significant advantage. In that type of case, the appellate court, in carrying out its independent assessment, will be required to weigh all of the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved:164 Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was 164 Dansie at [16]-[17] (the Court). -- 61 of 84 -- [2026] SASCA 71 S Doyle JA 58 circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight. 227 The appellate court must form its own view as to the appropriate inferences to be drawn from the evidence, albeit mindful that the ultimate issue is whether the verdict reached by the trier of fact was ‘open’. 228 The case being a substantially circumstantial one in critical respects, the court must be careful to take a holistic rather than a piecemeal approach to the evidence. The court must be satisfied, as a result of its own assessment of the whole of the evidence at trial, that the only rational inference available on that evidence was guilt as charged.165 As it was put in R v Hillier:166 The case against Mr Hillier was a circumstantial one. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. 229 Whilst it is necessary to be satisfied that the prosecution has excluded any inference or hypothesis consistent with innocence that is reasonably open, an inference or hypothesis will not be reasonably open unless it rests on something more than mere conjecture.167 It is not necessary to exclude a bare possibility that has no foundation in the evidence. 230 In summary, the appellants are right to emphasise the importance of this Court undertaking its own independent assessment of the evidence, and forming its own view as to the inferences and conclusions to be drawn from that evidence. This Court’s task is not confined to identifying error in the judge’s findings or approach.168 231 At the same time, as acknowledged by the High Court in Dansie, the appellate court must nevertheless remain mindful of the function played by the trial judge and not simply substitute a trial by the appellate court for the trial that has occurred. This deference to the function of the trier of fact is inherent in the ground for interference being an ‘unreasonable’ verdict, and in the ultimate question being framed in terms of whether it was ‘open’ to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty, and hence whether the trier of fact must have, as distinct from might have, entertained a reasonable doubt about the defendant’s guilt.169 165 Dansie at [38] (the Court). 166 R v Hillier (2007) 228 CLR 618 at [46] (Gummow, Hayne and Crennan JJ). 167 R v Baden-Clay (2016) 258 CLR 308 at [46]-[47] (the Court). 168 Dansie at [37] (the Court). 169 Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (the Court). -- 62 of 84 -- [2026] SASCA 71 S Doyle JA 59 232 Although the High Court’s emphasis in Dansie upon the appellate court’s own assessment of the evidence does not leave much room for deference to the trial judge’s decision, I do not think that the reasoning in that case goes quite so far as to suggest that the deference to the trial judge’s decision is strictly confined to cases where the trial judge had some clear or obvious advantage. To go this far would, it seems to me, risk subverting the role of the trier of fact, and substituting trial by appeal. Particularly where the verdict turns upon an evaluative assessment of a significant body of circumstantial evidence, the approach to be taken by the appellate court, although requiring an independent assessment as described above, does not always demand a conclusion that there was only one correct verdict. There may, at least in some cases, be room for reasonable minds to differ, with the result that the appellate court may be satisfied that the verdict was ‘open’ without necessarily being satisfied that it was the only ‘correct’ verdict, or indeed that it was the verdict the appellate court would have entered. An agreement to steal cannabis from the Carousel Street premises 233 To the extent that the appellants challenge the conclusion that they were party to an agreement to steal cannabis from the Carousel Street premises, there is no merit in that challenge. 234 There was some evidence from Ms McCormack and Ms Carson, which was admissible against Mr Mitchell and Mr Tenhoopen, of a discussion between those two men about a plan to steal cannabis, including the need for Mr Mitchell to ‘change into some darker clothes’. However, even without any evidence of the fact or content of any discussions between the defendants as to their plan for the night of 8 October 2018, there was an ample basis in the evidence to infer the existence of a plan to steal cannabis from the Carousel Street premises. 235 As mentioned earlier in these reasons, an agreement to embark upon a criminal enterprise may be formed relatively spontaneously and may be inferred from the defendants’ conduct. In the present case, there was no need to rely upon any spontaneously formed agreement. The coordinated conduct of the defendants in driving to a location near the Carousel Street premises, and then converging on that location as a group is a sufficient basis to conclude beyond reasonable doubt that their entry into the Carousel Street premises and theft of the cannabis occurred pursuant to an agreement between them. Even allowing for the fact that one or more of the defendants might have had earlier and more influential involvement in forming the plan than the other defendants, it can be inferred beyond reasonable doubt that, by at least the time they were approaching the Carousel Street premises on foot, each of them knew and had agreed that they would steal cannabis from that premises. Each of the defendants participated in the joint criminal enterprise 236 Nor, in my view, was there any reasonable doubt that each of the defendants participated in their joint criminal enterprise. -- 63 of 84 -- [2026] SASCA 71 S Doyle JA 60 237 It is apparent from what occurred in the Carousel Street premises, including not only the assault of Mr Gjabri, but also the cutting, bagging and removal of a large quantity of cannabis, that most if not all of the defendants were physically involved in the implementation of their agreement to steal cannabis. 238 It seems likely from what occurred that each of the men entered the Carousel Street premises. However, even if one were to allow for the possibility that one or two of the men did not enter the premises, that would not affect my conclusion that each of the men participated in the implementation of their agreement to steal cannabis. As McIntyre J explained when addressing a submission to this effect at trial, it was not necessary for her Honour to find beyond reasonable doubt that each defendant entered the premises.170 In the circumstances of this case, it would be sufficient to establish participation that each defendant was present at the Carousel Street premises, and in a position to assist to the extent necessary (for example, by keeping a lookout outside the premises, by being ready to assist as required, or by helping to load the cannabis into the car in the driveway). The pole depicted in the CCTV footage was used to inflict the fatal blow(s) 239 As an aspect of their submission that the verdicts were unreasonable, the appellants challenge the judge’s finding beyond reasonable doubt that the ‘pole like’ item which one of them was seen carrying in the CCTV footage was used to inflict the fatal blow or blows. 240 The first point to observe is that even though the judge accepted that a finding to this effect was an indispensable intermediate finding in the pathway to guilt, with the result that it needed to be made beyond reasonable doubt,171 I am not persuaded that that was so. 241 In my view, a finding that one of the men was carrying this item (which I shall refer to as ‘the pole’) as they approached the Carousel Street premises was important, even if not quite indispensable, to a conclusion that the defendants’ agreement to steal cannabis encompassed the possibility of significant violence. Relatedly, a finding that the other defendants were aware that one of their number was carrying this item was also important, even if not quite indispensable, to that conclusion. However, in my view, the evidence supported both of these findings. Just as the pole was able to be seen on the CCTV, so too it would have been seen by the other defendants as they approached the Carousel Street premises. Even if the item had been picked up as they walked towards Carousel Street, they were walking relatively slowly and in a group. The person holding the pole did not appear to be attempting to conceal it in any way. In my view, it was established beyond a reasonable doubt that one of the defendants was carrying the pole, and that the other defendants would have been aware of this. 170 Reasons [275]. 171 Reasons [275]. -- 64 of 84 -- [2026] SASCA 71 S Doyle JA 61 242 I reject as speculative the suggestion that the item seen in the CCTV footage was, or might have been regarded by any of the other defendants as, anything other than a weapon. I do not think there is any basis in the evidence for suggesting, for example, that the item was an implement designed primarily for house-breaking. Not only does it not appear to be an item designed for this use, the evidence subsequently obtained from the Carousel Street premises suggests that bodily force, rather than some house-breaking implement, was used to gain entry. I would also reject as mere conjecture the suggestion that it might have been an implement intended to assist in harvesting the cannabis they planned to steal, or a plastic or toy bat designed only for threatening force. I would likewise also reject as inherently implausible the suggestion that the item might have been discarded in the moments between it being seen in the CCTV footage and the defendants’ arrival at the Carousel Street premises. 243 I do not, however, think it was indispensable to the prosecution case that one of the men used the pole to inflict the fatal blow or blows. In my view, even if one of the men used some other blunt instrument to inflict the fatal blow or blows, and regardless of whether that blunt instrument was brought to the premises or located within the premises, that would not make any significant difference to the analysis. The position might have been otherwise had one of the defendants used a weapon of an entirely different nature (that is, with a significantly greater risk of lethality), such as a knife or gun. But that is not what occurred. 244 In any event, I am satisfied beyond reasonable doubt that the pole was used to inflict the fatal blow or blows. In relation to the case against Mr Tenhoopen, he made some admissions which assist in reaching that conclusion. In particular, Ms McCormack and Ms Carson said that he described the occupant of the Carousel Street premises being assaulted with an object. Whilst Ms Carson said he referred to this object as a bat, this description is consistent with what the judge described as the ‘pole like’ object seen in the CCTV footage. 245 However, I have reached that conclusion as against all defendants without that evidence. In my view, the use of the pole in this way can be inferred from a combination of the evidence to the effect that one of the men was seen carrying the pole moments before entry to the Carousel Street premises; the pole was not an item naturally suited to either use in forcing entry or in cutting or removing the cannabis; the forensic evidence was to the effect that the fatal blow or blows to Mr Gjabri’s head were the result of severe impact or impacts with a blunt instrument consistent with the pole; and the pole was not located during subsequent police searches of the Carousel Street premises, the surrounding streets and elsewhere (such as where the defendants were residing). 246 It may be accepted that the apparent disposal of the pole was not critical to a conclusion that it was used to inflict the fatal blow or blows, however it was a relevant consideration. It can be accepted that the defendants would have been -- 65 of 84 -- [2026] SASCA 71 S Doyle JA 62 more likely or careful to dispose of an item used in this way than some other item that did not feature in the assault, and ultimate death, of Mr Gjabri. 247 Further, I reject the submission that the description of the item seen in the CCTV footage as a ‘pole like’ object is somehow inconsistent with the forensic evidence as to the cause of death. Whilst the forensic evidence included reference to an object with a leading edge, the ultimate conclusion reached by Ms Charlwood was that the cause of death was a blunt force trauma, with the injuries being consistent with the use of a bat or pole. I do not understand the forensic evidence to have involved a conclusion that the object in question necessarily had a square edge. But even if it be assumed that the instrument used to inflict the fatal blow or blows had a square edge, that is not inconsistent with a conclusion that it was the item seen in the CCTV footage. The CCTV footage was not sufficiently clear to determine whether that item had an edge. Whilst described as a ‘pole like’ object, it may be observed that this description was general enough to encompass an object with an edge, whether it be a pole or some other similar looking item such as a bat. Scope of the agreement encompassed the possible use of violence 248 As a further aspect of their submission that the verdicts were unreasonable, the appellants challenge McIntyre J’s finding beyond reasonable doubt that the defendants’ agreement to steal cannabis encompassed the possible use of violence.172 249 On my independent assessment of the evidence, this finding was warranted, for essentially the reasons given by her Honour.173 In particular, the general circumstances suggested a forceful approach to the theft of the cannabis. During their travel to Para Vista, and then approach on foot, there was significant opportunity for the defendants to discuss, or at least contemplate, the possibilities of what might occur upon their entry into the Carousel Street premises. They approached in a group of five. It would have been apparent to them that one of their number was carrying the pole, being an item more suited to inflicting violence than to forcing entry or assisting in some other way in stealing the cannabis. Given that cannabis is a valuable commodity, they would have appreciated that there was a risk that someone might be present at the Carousel Street premises. They would have appreciated from the vehicle in the driveway that this was more than just a possibility. They would have been on edge and full of adrenaline, and aware that in entering the premises they would be entering an uncertain, and potentially dangerous and volatile, situation. The evidence was that the defendants entered the premises with force, and then acted with force once inside the premises. 172 Reasons [380]. 173 Reasons [376]-[379]. -- 66 of 84 -- [2026] SASCA 71 S Doyle JA 63 250 These features of the evidence and circumstances, when considered in combination, warranted a finding that the defendants’ agreement to steal cannabis encompassed the possible use of violence. 251 I mentioned that the defendants approached as a group. Whilst the presence of numbers was perhaps consistent with a hope that this might have been sufficient to avoid the need for violence, it was more consistent with, indeed supportive of, a realisation that force may be necessary. 252 In any event, even if some or all of the defendants hoped or anticipated that they might be able to steal the cannabis without the use of violence, that did not mean that they did not agree to its use as a possibility. As mentioned earlier in these reasons, agreement to the contingent and even reluctant use of violence may be sufficient for the purposes of liability pursuant to a JCE that ultimately involves the use of force.174 Complaint of ‘no’ evidence for judge’s conclusions 253 Mr Mitchell sought permission to add a Ground 1A to the effect that there was no evidence to support the judge’s conclusions that the pole seen in the CCTV footage was the weapon used to kill Mr Gjabri, or that the defendants agreed to use violence when stealing the cannabis, and hence no evidence upon which to base the judge’s conviction for murder.175 Mr Mitchell argues that the judge therefore erred as a matter of law, with the result that permission to appeal on this ground is not required. 254 In my view, this proposed ground is misconceived. Whilst it may be true to say that there was no evidence directly bearing on these issues, there was a substantial body of circumstantial evidence from which appropriate inferences might be drawn. It is not correct to say there was no evidence bearing on these issues, let alone on the judge’s ultimate conclusion of guilt. To the extent that there is an argument that the evidence was not sufficient to sustain her Honour’s conclusions, that is a matter addressed through Mr Mitchell’s Ground 1 complaint of an unreasonable verdict. 255 There being no prejudice to the respondent in Mr Mitchell raising the complaint in Ground 1A, I would grant him permission to amend to include this ground. However, I would dismiss the ground. Indispensable intermediate facts 256 At times, some of the appellants framed their challenges to the reasonableness of McIntyre J’s verdict by reference to various matters being indispensable intermediate facts which her Honour was therefore required to find beyond a reasonable doubt. 174 Mitchell at [37] (Gageler, Gleeson and Jagot JJ). 175 Carver Ground 1.3 involves a similarly framed complaint. -- 67 of 84 -- [2026] SASCA 71 S Doyle JA 64 257 Generally speaking, I do not think that the introduction of this terminology was necessary or helpful. Insofar as the complaints were directed to elemental aspects of the prosecution case (such as the existence of an agreement, the scope of which encompassed the possibility of violence of the same general nature), there was no need to resort to this terminology. 258 To the extent that this terminology was relevant to other findings (such as that one of the defendants was carrying the pole as they approached Carousel Street, that the other defendants would have been aware of this, that the pole was used to inflict the fatal blow or blows, and that the defendants were present at, and entered, the Carousel Street premises), this has already been addressed. Failure to exclude alternative hypotheses 259 Various of the appellants argued that McIntyre J failed to consider or reject hypotheses consistent with their innocence, either as a stand-alone ground176 or as an aspect of their other grounds of appeal. 260 I have already mentioned the importance of taking a holistic rather than a piecemeal approach to the evidence. I have also mentioned the need to be satisfied beyond reasonable doubt that the defendant’s guilt is the only rational hypothesis. As a corollary of this, it is necessary to exclude any hypothesis consistent with innocence that is reasonably open. To be reasonably open, a hypothesis must be based on more than mere conjecture or speculation; it must have some foundation in the evidence. 261 I have already addressed, and excluded, several of the hypotheses consistent with innocence advanced on appeal by the appellants. I have addressed and rejected, for example, the possibility or hypothesis that the pole held by one of the defendants as they approached the Carousel Street premises was (or might have appeared to one of the other defendants to be) something other than a weapon. I have addressed and rejected the hypothesis that one or more of the appellants did not agree to the possibility of violence. 262 Other hypotheses advanced by the appellants were merely the converse of certain findings made by the judge, and did not require explicit treatment by her Honour beyond their rejection inherent in the findings that were made. 263 By way of example, Mr Rigney’s submissions on appeal included an argument to the effect that McIntyre J erred in not excluding mere foresight of (as opposed to agreement to) the possibility of violence in the course of stealing the cannabis. I do not accept this submission. In her reasons, McIntyre J squarely addressed and accepted the prosecution argument that the evidence established beyond reasonable doubt that the defendants agreed to the possible use of force.177 As I have explained, this conclusion was soundly based in the evidence, 176 Rigney Ground 6. 177 Reasons [377]-[380]. -- 68 of 84 -- [2026] SASCA 71 S Doyle JA 65 particularly bearing in mind that even a contingent and reluctant agreement may suffice. But importantly for present purposes, in reaching that conclusion, her Honour plainly intended to, and did, reject as a reasonable possibility that any of the defendants merely foresaw, rather than agreed to, this possibility of violence. Her Honour’s reasons for concluding that an agreement was reached were effectively her Honour’s reasons for rejecting mere foresight. 264 It has not been established that McIntyre J failed to consider, or unreasonably rejected, any reasonable hypothesis consistent with innocence. Verdicts not unreasonable 265 For the reasons given, the appellants’ complaints that their verdicts of guilty of murder were unreasonable have not been made out. Having undertaken the requisite independent assessment of the evidence, I am satisfied that the evidence, considered holistically, established beyond reasonable doubt that each of them participated in an agreement to steal cannabis which included the possibility of violence. 266 I will address separately below the appellants’ complaints that, even if they agreed to the possible use of violence: (i) this did not include violence of the same general nature as that which was inflicted; and (ii) it was possible that the fatal blow or blows were struck after the other defendants had left the premises and so outside the scope of whatever had been agreed. Even though they form part of the appellants’ complaints of unreasonable verdicts, they also include complaints about the adequacy of the judge’s reasons. 267 I shall also address separately the appellants’ complaints that the judge’s finding that the defendants agreed to the possible use of violence of the same general type that occurred was inconsistent with: (i) Stein J’s finding in the Howell matter to the effect that he did not agree the possible use of violence of the same general nature as that which occurred and caused Mr Gjabri’s death; and (ii) McIntyre J’s own finding that the appellants did not foresee that one of their number might cause grievous bodily harm or death, with murderous intent. Agreement to use violence of the ‘same general nature’ 268 The appellants argue that even if they were party to an agreement to steal cannabis that included the possible use of violence, this did not extend to the possible use of violence of ‘the same general nature’ as that which occurred and caused the death of Mr Gjabri.178 269 As explained earlier in these reasons, it was a requirement of the defendants’ convictions for constructive murder pursuant to a JCE that the intentional act of violence which caused death was of ‘the same general nature’ as the violence 178 Rigney Ground 5, and encompassed within the unreasonable verdict ground advanced by the other appellants. -- 69 of 84 -- [2026] SASCA 71 S Doyle JA 66 which had been agreed as a possibility. As also explained earlier in these reasons, this requirement was an aspect of the more general requirement of liability via a JCE that the commission of the relevant crime fall within the scope of the defendant’s agreement. 270 I have earlier canvassed a number of the authorities addressing this issue in the context of cases involving the use of violence in connection with the commission of some other foundational crime, such as robbery. In applying these authorities to the facts in the Howell matter, I explained that in some cases it may be appropriate to formulate the defendants’ agreement in terms of an agreement to commit a robbery, involving any or whatever force is necessary. In other cases, there might be a basis in the evidence for identifying some limit upon the violence which has been agreed as a possibility, whether by reference to the nature or degree of the violence or by reference to the purpose of the violence. 271 In the Howell matter, Stein J was not satisfied that Mr Howell agreed to the possible use of violence intended to cause grievous bodily harm or death. Further, Stein J accepted as a reasonable possibility that Howell only agreed to the possibility of violence in order to subdue the occupant (and not aggressive violence including striking the occupant to the head with sufficient force to fracture his skull). 272 In the joint trial, on the other hand, McIntyre J found that the intentional act or acts of violence that caused Mr Gjabri’s death was or were of the same general type as that which the defendants in the joint trial had agreed was a possible part of their joint enterprise to steal cannabis. In her Honour’s view, the defendants, having agreed to the possible use of a weapon to assault any occupant of the Carousel Street premises, had agreed to violence of the same general type as that which occurred. The use of a blunt force instrument to strike Mr Gjabri to the head with severe force (or force sufficient to fracture his skull) was violence of the same general nature as what had been agreed as a possibility. Put differently, McIntyre J did not allow for a reasonable possibility that there was a relevant limit upon the violence which the defendants had agreed as a possibility. Her Honour did not, for example, allow for a reasonable possibility that the defendants agreed only to the possibility of force in order to subdue, and not the aggressive or gratuitous use of force sufficient to fracture the occupant’s skull. 273 At times, some of the defendants sought to elevate their argument to one of a formal inconsistency with the verdict in the Howell matter.179 This argument was not pressed, and certainly not developed, in oral submissions. Indeed, it seemed to me that the argument was abandoned. However, to the extent that it was pressed, I do not think it has merit. 274 Taking a step back for a moment, all five defendants were initially charged on the one information. Mr Howell’s defence of the case against him included an 179 Mitchell Ground 1.3; Rigney Ground 4; Tenhoopen Ground 9. -- 70 of 84 -- [2026] SASCA 71 S Doyle JA 67 argument that he acted under duress, having been threatened by Mr Rigney. Mr Rigney unsuccessfully applied for a separate trial, but ultimately the prosecution filed a separate information against Mr Howell and he was tried separately. As I have explained, there were differences in the evidence led at the two trials. In particular, there was evidence in Mr Howell’s trial from his partner and friends which was not led in the joint trial, and there was evidence in the joint trial from Ms McCormack and Ms Carson which was not led in Mr Howell’s trial. Indeed, whilst the prosecution did not seek to identify the person who inflicted the fatal blow or blows in either trial, there was evidence in Mr Howell’s trial that suggested that this person may have been Mr Rigney, whereas there was evidence in the joint trial which, although not admissible against all defendants, suggested that this person may have been Mr Howell. 275 It is accepted that where there is an inconsistency between two verdicts in the same trial, and it cannot be explained or rationalised by some difference in the evidence or other appropriate explanation, then this may justify a conclusion that a conviction is unreasonable.180 276 In circumstances where there was different evidence in the trial against Mr Howell, it is difficult to see how a relevant inconsistency could be made out. That is particularly so in circumstances where Stein J’s reasoning in Mr Howell’s matter was informed at least to some extent by the evidence admissible in that matter, which did not feature in the joint trial. I refer in that respect to the evidence from Mr Howell’s partner and friends as to Mr Howell’s distressed state both immediately after the events of 8 October 2018 and upon subsequent media coverage. Whilst there was similar evidence in relation to a couple of the defendants in the joint trial, it does not appear to have had an equivalent influence upon McIntyre J, even in relation to those defendants to whom it related. The different evidence in relation to the knowledge and plans of the defendants in the joint trial permitted differing conclusions as to the scope of the parties’ agreement, and in particular the extent of the possible violence they agreed. 277 More fundamentally, even putting to one side the differences in the evidence between the two trials, there is a difficulty in applying the principles governing inconsistent verdicts as between verdicts in different trials. 278 At the very least, those principles have limited utility given the need to make allowance not only for any differences in the evidence between the two trials, but also the entitlement of different triers of fact to take a different view of the 180 MFA v The Queen (2002) 213 CLR 606 at [34] (Gleeson CJ, Hayne and Callinan JJ); R v H, GJ (2008) 102 SASR 82 at [23]-[27] (Kourakis J, Doyle CJ and White J agreeing); R v Neocleous (2017) 270 A Crim R 262; [2017] SASCFC 162 at [149] (Doyle J, Peek J agreeing). -- 71 of 84 -- [2026] SASCA 71 S Doyle JA 68 witnesses from whom they hear evidence. This was the view of the English Court of Appeal in R v Andrews-Weatherfoil Ltd.181 279 Although I have some reservations as to whether the principles governing inconsistent verdicts apply at all when the verdicts relate to two separate trials, and hence two separate triers of fact, it is not necessary for me to reach a concluded view about this. It is not necessary because, ultimately, the appellants in the present matter pitched their argument on this issue at the level that McIntyre J erred: (i) in failing to address, and ultimately in failing to accept as a reasonable possibility, the limitation upon the scope of the defendants’ agreement identified by Stein J; and/or (ii) in holding that the severe blow(s) to Mr Gjabri’s head that caused his death involved violence with a blunt force weapon which the defendants agreed was a possibility. 280 It is fair to observe that McIntyre J’s reasons on this issue could have been more detailed. The only place in which the judge squarely addressed the issue of whether the scope of the defendants’ agreement included the possibility of violence of the same general type as that which occurred was in paragraph [385]. As her Honour relevantly stated in that paragraph: [385] … As outlined above, I am satisfied that the planned robbery included an agreement, if necessary, to assault any occupant of the grow house with the weapon I find that the defendants took with them. An assault with the weapon is an intentional act of violence of the same general nature as that which killed Mr Gjabri. 281 Although succinct and conclusory in its terms, this extract from her Honour’s reasons must be read in context. As the conclusion expressed is one that relates to the scope of the defendants’ agreement, it must be read in the context of her Honour’s earlier explanation for concluding that the agreement encompassed the possibility of violence. In particular, her Honour’s reference to matters ‘outlined above’ was presumably a reference to her reasons on this topic in paragraphs [377]- [380]. Whilst her Honour did not say so in terms, it is apparent from these passages from her reasons that she was not satisfied that there was any basis in the evidence at the joint trial for relevantly confining the scope of the violence that was agreed as a possibility, or for otherwise concluding that the violence which did occur was not of the same general type as that which had been agreed as a possibility. Her Honour was apparently not satisfied that there was any basis for confining the agreement to the possibility of violence which was for the purpose of subduing the occupant, as opposed to aggressively striking him with sufficient force to fracture his skull. 282 The issue is ultimately an impressionistic one rather than one that is susceptible of detailed or rigorous analysis. Having undertaken an independent assessment of the evidence in the joint trial, the issue is finely balanced. In my 181 R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118 at 125-126 (Everleigh J); approved by the House of Lords in R v Shannon [1975] AC 717; and cited with approval by the High Court in MacKenzie v The Queen (1996) 190 CLR 346 at 366 (Gaudron, Gummow and Kirby JJ). -- 72 of 84 -- [2026] SASCA 71 S Doyle JA 69 view, even though I have accepted that Stein J’s different view was ‘open’ on the evidence in the Howell matter, it was nevertheless also ‘open’ to McIntyre J to conclude that the defendants in the joint trial agreed to the possibility of violence of the same general nature as that which caused Mr Gjabri’s death. Even if relatively slight, McIntyre J had some advantage over this Court. She had the advantage of seeing and hearing the witnesses give evidence, as well as considering the evidence more generally, in the context and atmosphere of the trial as it unfolded. Whilst sometimes difficult to identify and describe, this advantage was nevertheless real. Bearing in mind this advantage, I am not satisfied, on my independent assessment of the evidence, that it can be said that her Honour must have, as distinct from might have, entertained a reasonable doubt about the defendants’ guilt of murder. 283 As I have explained, the defendants travelled in numbers and with one of them carrying an item which might be used as a weapon. They would have appreciated that there may well be someone present in the premises they were about to enter, and that force might have been necessary. They would have appreciated that they were about to encounter an uncertain, and potentially volatile and dangerous, situation. Whilst some of them may have been reluctant for significant force to be used, I am satisfied that it was open to conclude, as McIntyre J did, that the defendants must have anticipated and agreed to the possibility that one of their number might strike any occupant who they came across with sufficient force to cause serious harm, and hence anticipated and agreed to violence of the same general nature as that which occurred and caused death. Indeed, this conclusion would be consistent with the caution that I have earlier in these reasons suggested will be appropriate when considering or allowing for the possibility of some limit upon the nature of violence which has been agreed as a possible incident of the JCE. 284 For these reasons, I would reject the appellants’ challenges to the judge’s reasoning and conclusion to the effect that they agreed to violence of the same general nature as that which caused Mr Gjabri’s death, and the appellants’ related contention that the verdicts were unreasonable on this account. Inconsistency with rejection of extended joint criminal enterprise 285 The complaints raised by the appellants include a complaint that McIntyre J’s conclusion that the defendants’ agreement encompassed violence of the same general nature as that which caused Mr Gjabri’s death was inconsistent with her own rejection of the prosecution case of common law murder by reason of an EJCE.182 286 As recounted earlier in summarising McIntyre J’s operative reasoning, her Honour rejected the prosecution case on common law murder by reason of an EJCE in paragraph [384]. Her Honour did so on the basis that she was not satisfied 182 Mitchell Ground 2; Tenhoopen Ground 7. -- 73 of 84 -- [2026] SASCA 71 S Doyle JA 70 beyond reasonable doubt that the defendants foresaw or contemplated that one or more of their number might use a weapon to assault Mr Gjabri with the intention of causing him death or grievous bodily harm. In reaching this conclusion, the judge relied on the evidence that Mr Tenhoopen and Mr Carver were shocked and distressed when they found out about Mr Gjabri’s death, and her acceptance that it was unnecessary and indeed counterproductive for the defendants to kill or inflict serious harm to any occupant of the house in order to steal the cannabis. 287 It is to be accepted that there is a fine distinction between this conclusion and McIntyre J’s conclusion in the very next paragraph of her reasons to the effect that the violence that occurred was of the same general nature as that which was agreed as a possible incident of the defendants’ plan to steal cannabis. However, the distinction is nonetheless clear. Putting to one side the distinction between the violence being agreed as a possibility (for JCE) and merely being foreseen as a possibility (for EJCE), there is a distinction between violence of the same general nature as the intentional act of violence that killed Mr Gjabri (for constructive murder) and an act intended to cause death or grievous bodily harm (for common law murder). Whatever the precise limits of the notion of violence of ‘the same general nature’ as the act which killed Mr Gjabri, it encompasses, in the sense that it includes or extends to, a lower level of violence than an act intended to cause death or grievous bodily harm. 288 It follows that there is no inconsistency between McIntyre J’s conclusions as to the level of violence agreed or foreseen as a possibility. On her Honour’s approach, it was proved that the defendants agreed the possibility of violence of the same general nature as that which occurred, but did not foresee the possibility of violence perpetrated with an intent to cause grievous bodily harm or death. I have explained why, in my view, it was open on the evidence for her Honour to find the former. But having reached this finding, there was no logical difficulty with her Honour nevertheless rejecting the prosecution case on common law murder by EJCE. 289 Implicit in this conclusion is my rejection of a related submission advanced on behalf of Mr Mitchell. On appeal, Mr Mitchell argued that liability for constructive murder pursuant to a JCE required that the prosecution establish not only (i) that Mr Mitchell agreed the possibility of violence of the same general nature as that which caused Mr Gjabri’s death, but also (ii) that he contemplated (in the sense that he agreed to the possibility of) violence of a type that might cause death or grievous bodily harm. 290 If, as Mr Mitchell argued, it was necessary for the prosecution to establish (ii), then there may well have been force in the submission that there was a tension, if not inconsistency, between a conclusion that Mr Mitchell did have the contemplation necessary to establish (ii), but did not have the foresight necessary for common law murder by EJCE. -- 74 of 84 -- [2026] SASCA 71 S Doyle JA 71 291 However, I do not accept that (ii) is a requirement of liability for constructive murder pursuant to a JCE. The High Court in Mitchell did not suggest it was a requirement, and no authority was cited to this Court for the submission that it was a requirement. Certainly the judge did not treat it as a requirement and thus did not make any finding that was inconsistent with her basis for rejecting common law murder by EJCE. 292 Finally, I do not consider that there is any merit in Mr Tenhoopen’s related complaint about the judge’s reference to the defendants being party to an agreement ‘if necessary’ to assault any occupant with the weapon they were carrying. Her Honour’s reference to an assault ‘if necessary’ was intended merely to emphasise the contingent nature of the violence to which they had agreed. They had not agreed that violence would be used; rather, they had agreed that violence was a possible incident of their plan; and they had agreed that violence would be used if it became necessary. Violence would not have been necessary if, for example, it turned out there was no-one at the premises, or any occupant(s) fled from the premises. 293 Understood in this way, the reference to the defendants agreeing to violence ‘if necessary’ did not involve any reliance upon a mere contemplation or mere foresight of violence. Her Honour was plainly alive to, and observed, the sometimes fine, but nevertheless important, difference between foresight (for the purposes of EJCE) and agreement (for the purposes of JCE). Agreement was still on foot when fatal blow was struck 294 The next complaint to be addressed is an argument that McIntyre J failed to address, or erred in rejecting, the possibility that the defendants’ agreement or joint enterprise was no longer on foot when the fatal blow was inflicted.183 The argument was framed as an aspect of both a complaint of an unreasonable verdict and a complaint of inadequate reasons. 295 So far as Mr Tenhoopen was concerned, this argument was founded upon his out of court statements to the effect that Mr Howell went back inside the Carousel Street premises to ‘finish off’ Mr Gjabri after they had stolen the cannabis and so after any joint enterprise had been completed. So far as the other appellants pursuing this ground were concerned, the argument was founded upon the more general or abstract possibility that one of the other defendants acted in this way. They relied upon the inability for the prosecution to identify the precise timing of fatal blow, and in particular whether it occurred before or while the cannabis was being cut, bagged and removed, or whether it occurred after those tasks had been completed. 183 Mitchell Ground 4; Carver Grounds 1.1.3 and 2.1.3; Rigney Ground 3; Tenhoopen Grounds 1(d), 3 and 8. -- 75 of 84 -- [2026] SASCA 71 S Doyle JA 72 296 In addressing Mr Tenhoopen’s argument at trial, McIntyre J reasoned as follows: [301] Ms McCormack’s evidence about “the man” looking out of a window is difficult to assess. Ms McCormack said that: When they returned to Adelaide, Tenhoopen told her that when he and the others left the house that evening, he saw the male looking through the window and that “[JPH] finished him off”. I note in this context Ms McCormack’s concession in cross-examination that, at the first trial when her memory was better, she said that Tenhoopen told her that “[JPH] went back into the house and finished him off”. [302] Most of the windows were covered with plastic which did not appear to have been disturbed. However, the kitchen and laundry windows only had vertical blinds, so it is possible that Mr Gjabri looked out of one or other of those windows as the intruders were departing.184 The forensic evidence is that Mr Gjabri was alive for at least an hour after the head injury was inflicted. The crime scene indicates that he moved around the house for a period of time. It is unlikely that this occurred whilst the theft was taking place and, in any event, his blood was found on top of the cannabis debris. [303] I note the submission made on behalf of Tenhoopen that this of itself ought to be a basis for his acquittal. I do not agree. First, the plan to steal cannabis was still on foot at the time this is said to have occurred. Second, whilst this evidence is admissible as against Tenhoopen in respect of his involvement in the theft of cannabis, in so far as it represents an exculpatory statement by Tenhoopen as to his involvement in Mr Gjabri’s death, it is inadmissible hearsay. 297 In my view, the appellants’ argument should be rejected. 298 It is to be acknowledged that the judge appears to have erred in two respects in her treatment of Ms McCormack’s evidence to the effect that Mr Tenhoopen told her that, as they were leaving the Carousel premises, he saw the occupant looking out the window and that Mr Howell went back inside to ‘finish him off’. 299 First, it appears her Honour misunderstood the evidence about the covering of the windows,185 and that it would have been possible for Mr Gjabri to have been looking out through the windows at the front of the house. But it does not seem that this error was of any consequence, given that her Honour expressly allowed for the possibility that Mr Gjabri might have been seen through one of the kitchen or laundry windows. 300 Secondly, it appears that her Honour erred in describing the relevant aspect of Ms McCormack’s evidence as ‘inadmissible’ hearsay.186 Even though hearsay in nature, this evidence was admissible as part of a mixed statement. McCormack’s evidence of what Mr Tenhooopen told her was led by the 184 Exhibit P3. 185 Tenhoopen Ground 5. 186 Tenhoopen Ground 2. -- 76 of 84 -- [2026] SASCA 71 S Doyle JA 73 prosecution on the basis that it included admissions by Mr Tenhoopen. His statements having been led on that basis, the entirety of those statements, including any exculpatory aspects, were admissible in the case against him.187 Whilst the judge was entitled to give the exculpatory aspect of this evidence little or no weight, her Honour was not entitled to ignore it as inadmissible. If her Honour did ignore this evidence, then her Honour erred in doing so. 301 However, any error in this respect was, on the face of her Honour’s reasons, of no consequence. It was of no consequence because even if this error, like the other error, might have influenced her Honour’s apparent disinclination to accept that it was possible that Mr Howell did go back inside to ‘finish off’ Mr Gjabri, her Honour nevertheless considered that possibility. She considered it, and concluded (paragraph [303]) that it was not an obstacle to the prosecution case. It was not an obstacle because if it occurred, it occurred while the plan to steal cannabis was still on foot. 302 For these reasons, any error in the treatment of Ms McCormack’s evidence was not realistically capable of affecting the judge’s reasoning to her verdict of guilty. It was not material in the relevant sense. 303 Further, I agree with the judge’s conclusion in paragraph [303] that, even if it be accepted that Mr Howell (or one of the other defendants) went back inside the Carousel Street house and ‘finished off’ Mr Gjabri, this nevertheless occurred while the plant to steal the cannabis was still on foot. 304 The first point to make is that it seems unlikely on the evidence that this occurred. Even though there was some evidence in the case against Mr Tenhoopen that this might have occurred (through his statement to Ms McCormack to this effect), the weight to be attached to this evidence fell to be assessed in a context that included the evidence that Mr Tenhoopen told Mr W that Mr Gjabri was hit over the head during the initial struggle with him following the defendants’ entry into the Carousel Street premises. As against the other defendants there was no basis in the evidence to suggest the possibility that the fatal blow was inflicted after they had removed the cannabis from the house. I am not persuaded that it was reasonably possible that the fatal blow was inflicted in the manner contended. 305 But more fundamentally, even if the fatal blow was inflicted after the cannabis was removed from the Carousel Street premises, the plan to steal the cannabis was still on foot. Even on Mr Tenhoopen’s version of events, he and the other defendants were still in the driveway when Mr Howell went back inside. Even if it was unnecessary at that point for Mr Howell to return inside and kill Mr Gjabri, the plan was still on foot. The plan remained on foot at least until they left the Carousel Street premises together in Mr Gjabri’s car, with the cannabis in the boot of that vehicle. The suggestion that the plan somehow came to an end 187 Nguyen v The Queen (2020) 260 CLR 299 at [23]-[24] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ), [59] (Edelman J). -- 77 of 84 -- [2026] SASCA 71 S Doyle JA 74 once the cannabis was out of the house, but while they were still in the driveway of that house waiting to leave in Mr Gjabri’s car, involves an artificially narrow view of the plan. 306 The appellants argued that once the cannabis had been removed, the robbery was legally complete. I do not agree. Under s 137 of the CLCA, robbery encompasses the use of force at the time of, or immediately before or after, the theft. In my view, violence which occurred prior to the defendants leaving in Mr Gjabri’s car was still part of the robbery. But even if it was possible that one of the defendants inflicted the fatal blow after the offence was legally complete, it does not follow that the defendants’ agreement or plan was no longer on foot. In my view, that agreement or plan continued at least until they had left the Carousel Street premises in Mr Gjabri’s vehicle, and probably until they had divided up the cannabis back in Murray Bridge. 307 For these reasons, I am satisfied that the defendants’ agreement or plan was still on foot at the time the fatal blow or blows were struck. Whilst her Honour only directly addressed this issue in the context of the case against Mr Tenhoopen, and even then did so in a succinct if not conclusory manner, her Honour’s reasons were adequate. Read as a whole, her Honour made properly reasoned and supported findings which necessarily entailed a conclusion that the defendants’ agreement or plan was still on foot at the time when the fatal blow was struck. 308 For completeness, I add two observations. 309 The first is that I do not think it alters the analysis to describe the possibility that Mr Howell went back inside to ‘finish off’ Mr Gjabri as a possibility that Mr Howell was acting on a ‘frolic of his own’ and therefore outside of the scope of any plan or agreement. Even assuming it was reasonably possible that Mr Howell went back inside and struck Mr Gjabri to the head with sufficient force to fracture his skull, the issue remains whether this involved violence of the same general nature as that which had been agreed as an incident of the robbery. Even if this might be described as violence which was severe and gratuitous (in the sense it went beyond what was strictly necessary to steal the cannabis), the issue remains whether it was reasonably possible to discern some basis for a relevant limit upon the nature or level of the violence to be used. Whilst Stein J found a relevant limitation on the evidence in the trial against Mr Howell, McIntyre J was not persuaded that there was a basis for any such limit. Whilst accepting that the defendants had not foreseen (let alone agreed) to the use of force intended to cause grievous bodily harm or death, her Honour was not prepared to infer a limitation which would have taken the violence used outside of the general nature of the violence which it had been agreed might be used. 310 Secondly, I do not accept that there was any basis in the evidence for a submission that any of the defendants withdrew from their agreement or plan prior to the infliction of the fatal blow. It was thus not a matter which it was necessary for McIntyre J to address in her reasons. -- 78 of 84 -- [2026] SASCA 71 S Doyle JA 75 Inadequate reasons 311 Each of the appellants raise complaints about the adequacy of McIntyre J’s reasons. Mr Carver makes a general complaint as to the adequacy of the judge’s reasons in support of her conclusion that he was party to an agreement the scope of which encompassed violence.188 Each of the appellants make complaints about the adequacy of the judge’s reasons on the topic of whether the agreement was still on foot when fatal blow was inflicted.189 312 The appellants’ complaints about the inadequacy of the judge’s reasons relate largely, if not entirely, to matters which I have already addressed in the context of my consideration of the appellants’ challenge to the judge’s verdicts on the ground they are unreasonable. Particularly in circumstances where they were not emphasised in the appellants’ submissions, I consider that the appellants’ complaints of inadequacy in the judge’s reasons have been sufficiently addressed. 313 As I have earlier acknowledged, the judge’s reasons may have benefited from a more detailed treatment of some issues. However, read as a whole, her Honour’s reasons adequately addressed the issues in dispute, and set out the key steps in her reasoning to guilt. I am not persuaded that any of the complaints of inadequacy have been made out. Use of DNA evidence against Mitchell 314 Mr Mitchell contends that McIntyre J erred in her treatment of the evidence about the DNA profile obtained from a pair of secateurs located in the Carousel Street premises.190 315 The judge addressed this evidence in detail in her reasons.191 As the judge explained, the DNA profile obtained from the secateurs gave strong support for Mr Mitchell as a contributor to that profile. Mr Mitchell’s complaint on appeal appears to be that the judge failed to give adequate consideration to the possibility that this may have been a result of secondary transfer, via one of the other defendants, and that the judge ultimately erred in excluding this as a possible explanation for Mr Mitchell’s DNA on the secateurs. 316 There are two difficulties with Mr Mitchell’s submissions on this ground of appeal. The first is that the judge plainly did address the issue of secondary transfer.192 Her Honour referred to the expert evidence to the effect that this was possible. However, her Honour considered that this explanation for Mr Mitchell’s DNA, whilst possible, was not likely. The second is that, as the judge acknowledged, there was no need for her to exclude secondary transfer as a reasonable possibility. This case was distinguishable from Fitzgerald v The 188 Carver Ground 1. 189 Mitchell Ground 4; Carver Ground 1.1; Rigney Ground 3; Tenhoopen Ground 8. 190 Mitchell Ground 3. 191 Reasons [263]-[265], [359]-[364]. 192 Reasons [361]-[364]. -- 79 of 84 -- [2026] SASCA 71 S Doyle JA 76 Queen,193 where it was necessary to exclude secondary transfer as a reasonable possibility. As McIntyre J explained, whilst Mr Mitchell’s connection with the secateurs was circumstantial evidence probative of his entry inside the Carousel Street premises, neither his connection with the secateurs, nor even his entry inside the Carousel Street, was an indispensable intermediate fact which required proof beyond reasonable doubt. 317 Mr Mitchell’s challenge to the judge’s treatment of the evidence in relation to the DNA profile obtained from the secateurs has not been made out. Other Tenhoopen grounds 318 Mr Tenhoopen raised some discrete matters on appeal. 319 I have already addressed two of these, being his Ground 2 complaint about the judge’s error in treating an inculpatory aspect of Ms McCormack’s evidence as inadmissible hearsay, and his Ground 5 complaint about the judge misunderstanding an aspect of the evidence relating to the window coverings at the front of the Carousel Street premises. 320 In Ground 4,194 Mr Tenhoopen complains that the judge misused the evidence of an intercepted telephone conversation in which Mr Tenhoopen said to Ms McCormack ‘oh well, shit happens hey, sometimes you have to go in and fucking hurt someone too much’. As mentioned earlier, the judge treated this as an admission of Mr Tenhoopen’s awareness of events on the night of the cannabis theft, including Mr Gjabri being hurt,195 and ultimately an admission of his involvement in that theft.196 321 Although not challenging the judge’s use of this telephone intercept evidence in this way, Mr Tenhoopen argues on appeal that her Honour went further and used it as an admission of Mr Tenhoopen’s agreement to use force or violence. 322 I do not accept that the judge used the evidence in this way. When directly considering the evidence in paragraphs [348] and [350], her Honour expressly confined the admission in the manner described above. Consistently with this, the judge later made reference to ‘the listening device evidence’ when finding that Mr Tenhoopen was party to the plan to steal cannabis.197 323 Mr Tenhoopen emphasises a further reference to this evidence in paragraph [376] of McIntyre J’s reasons. In moving from her consideration of the existence of an agreement to steal cannabis, to a consideration of whether that agreement included the use of force, her Honour commenced as follows: 193 Fitzgerald v The Queen (2014) 88 ALJR 779. 194 Tenhoopen Ground 4. 195 Reasons [348]. 196 Reasons [350]. 197 Reasons [374]. -- 80 of 84 -- [2026] SASCA 71 S Doyle JA 77 [376] The defendants intended to steal cannabis; did they intend to threaten or use force? There is no direct evidence from any of the defendants as to their intentions. As against Tenhoopen alone I note his admissions to the use of force to Ms McCormack, Ms Carson and Mr W and his comment on the covert listening device. There is not evidence in respect of the other defendants. The intentions of all four defendants and [Mr Howell] must be inferred from the surrounding circumstances. (emphasis added) 324 Read in context, I do not think her Honour used the listening device evidence as an admission of Mr Tenhoopen’s agreement to use force or violence. Her Honour was merely introducing her consideration of the topic by noting Mr Tenhoopen had admitted using violence in his statements to Ms McCormack, Ms Carson and Mr W, and had made a comment about the use of violence in the listening device evidence. Her reference to Mr Tenhoopen’s ‘comment’ about the use of force, as opposed to an ‘admission’ about the use of force, on the listening device is consistent with her Honour appreciating, as she had earlier, that in this conversation Mr Tenhoopen only admitted awareness of the violence, rather than involvement in it or agreement to use it. But even if the judge had overlooked this distinction, and treated the listening device evidence as including an admission about the use of force, that would not take the matter very far for two reasons. 325 The first is that Mr Tenhoopen had made other admissions about the use of force in his conversations with Ms McCormack, Ms Carson and Mr W. The second is that the judge plainly recognised that even though the use of (some limited) force by Mr Tenhoopen was relevant to what he and others had agreed, the fact and extent of any agreement to use force fell to be ‘inferred from the surrounding circumstances’. In considering those surrounding circumstances, her Honour did not draw upon any suggested admission by Mr Tenhoopen that he had agreed to the use of force. 326 In Ground 6,198 Mr Tenhoopen contends that the judge erred in accepting the evidence of Mr W without warning herself about the risk of his evidence lacking credibility or reliability. 327 As recounted earlier, Mr W was a cell mate of Mr Tenhoopen in late 2018. He gave evidence of conversations he had with Mr Tenhoopen in which Mr Tenhoopen made various statements about the events during the night of 8 October 2018. The judge addressed this evidence in some detail,199 before ultimately accepting Mr W’s evidence to the effect that Mr Tenhoopen had made admissions to him about not only his involvement in the theft of cannabis, but also the use of violence in that theft.200 As to the latter, the admissions to Mr W included statements that there had been a struggle with the occupant in a doorway, that the occupant had been hit over the head, and that the occupant was then taken to 198 Tenhoopen Ground 6. 199 Reasons [252], [341]-[347]. 200 Reasons [342], [347]. -- 81 of 84 -- [2026] SASCA 71 S Doyle JA 78 another room where the group took turns watching him while the others collected the drugs. The admissions did not include any reference to who had struck the blow to the occupant’s head, or what was used to strike that blow. 328 In closing addresses at trial, counsel for Mr Tenhoopen submitted that the judge should be mindful of McHugh J’s observations in Pollitt v The Queen,201 about the danger of relying upon the evidence of a prison informer where that evidence is not corroborated by other evidence tending to connect the defendant with the offence charged. 329 In her reasons for judgment, McIntyre J did not address this submission or danger in terms. Early in her reasons, when addressing her approach to the witnesses in the trial generally, the judge did give herself the following direction: [31] In making findings of fact, I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense; I have reminded myself of the usual directions given in this state to juries concerning the proper approach to assess the various witnesses who gave evidence, their credibility and reliability. 330 Given the submission that had been made in Mr Tenhoopen’s closing address, the Director contends that her Honour’s reference to the proper approach to be taken in assessing ‘various witnesses’ should be understood as including reference to Mr W’s evidence. Whilst that may be so, it is not clearly so. It would have been better had the judge made explicit reference to the caution which was appropriate in considering the evidence of Mr W. 331 However, ultimately, the issue is whether there has been a miscarriage of justice. Given that this was a trial by judge alone, there may be no miscarriage of justice if the judge’s reasons demonstrate an awareness of the need for caution in assessing Mr W’s evidence, and that an appropriately cautious approach was taken. 332 In that regard, there are several significant aspects of her Honour’s treatment of Mr W’s evidence. When introducing his evidence, she twice made reference to his status as a prisoner.202 She explicitly stated that it was ‘important in this context to consider whether Mr W is a credible and reliable witness’.203 After summarising the effect of Mr W’s evidence about what Mr Tenhoopen said to him, McIntyre J described him as giving his evidence in a straightforward manner and not shying away from his ‘somewhat extensive criminal history’.204 Her Honour made reference to Mr W having ‘denied making up the account given to him by 201 Pollitt v The Queen (1992) 174 CLR 558 at 614 (McHugh J); see also at 585-586 (Brennan J), 588 (Deane J) and 599 (Dawson and Gaudron JJ). 202 Reasons [252], [341]. 203 Reasons [341]. 204 Reasons [343]. -- 82 of 84 -- [2026] SASCA 71 S Doyle JA 79 Tenhoopen because he had a sentencing matter coming up’. The judge added that there was no evidence that Mr W had been offered any reward for his evidence.205 333 Over the next three paragraphs, the judge considering the extent to which matters about which Mr W gave evidence accorded with the other evidence that the judge had heard. She identified several aspects of his evidence which were consistent with matters that had been ‘independently established’ by the evidence about the crime scene, or that Mr W could only have obtained from Mr Tenhoopen. Her Honour also noted the ‘significant similarity’ between the evidence of Mr W and the evidence of Ms McCormack and Ms Carson about what they were told by Mr Tenhoopen. Her Honour acknowledged some aspects of Mr W’s evidence that were inconsistent with other evidence, but was satisfied that these were indicative of him being mistaken rather than him fabricating his evidence. 334 It was only after this detailed treatment of Mr W’s evidence that her Honour accepted that his evidence was generally truthful and reliable.206 335 In the circumstances I have described, it is plain that the judge was aware of, and observed, the need for caution in considering the credibility and reliability of Mr W’s evidence. Her Honour identified and considered the sources of particular risk or danger when considering the credibility and reliability of his evidence, and she identified and considered the extent to which his evidence was corroborated by, or otherwise consistent with, other aspects of the evidence. In those circumstances, I do not accept that the judge’s failure to expressly acknowledge the submission of Mr Tenhoopen’s trial counsel about the dangers associated with a prison informer’s evidence occasioned any miscarriage. 336 No error has been identified in her Honour’s approach to Mr W’s evidence. There is no reason to think that she overlooked, or erred in rejecting, the possibility that Mr W might not have accurately understood or recalled some aspects of what Mr Tenhoopen said, including the extent to which he might have been merely describing things that he had been told by others. 337 Finally, and in any event, the judge only relied upon Mr W’s evidence as establishing admissions by Mr Tenhoopen as to his involvement in the theft of the cannabis, and as to use of force in the course of that theft. Her Honour did not suggest that Mr W’s evidence included any admission by Mr Tenhoopen that he had used violence, or that he had agreed to the use of violence. Whilst the admissions made to Mr W formed part of the context in which the judge came to consider the latter issue,207 they did not add much to the similar admissions he had made to Ms McCormack and Ms Carson, and did not directly inform her Honour’s reasoning to the effect that an agreement to use violence could be inferred from the surrounding circumstances. 205 Reasons [343]. 206 Reasons [346]. 207 Reasons [376]. -- 83 of 84 -- [2026] SASCA 71 S Doyle JA 80 338 I am not satisfied that the complaint of a material miscarriage of justice in Ground 6 of Mr Tenhoopen’s appeal has been made out. Conclusion 339 For the reasons set out, I would grant the appellants permission to appeal on all grounds where that is necessary. However, I am not satisfied that any of the grounds of appeal have been made out. I would therefore dismiss the appeals brought by Mr Mitchell, Mr Carver, Mr Rigney and Mr Tenhoopen. PART D: ORDERS 340 In relation to Mr Howell’s matter, I would grant the Director permission to appeal, but dismiss the appeal. 341 In relation to the joint trial, I would grant Mr Mitchell, Mr Carver, Mr Rigney and Mr Tenhoopen permission to appeal on all grounds where that is necessary, but dismiss their appeals. -- 84 of 84 --