[2023] SASCA 109

Prosecution: THE KING Counsel: MR R WILLIAMS WITH MR P MULVIHILL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: HAYDN SANSBURY Counsel: MR S HENCHLIFFE QC WITH MR S JOYCE - Solicitor: SHAW & HENDERSON Hearing Date/s: 17/03/2022 File No/s: SCCRM-21-474 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. QUESTION OF LAW RESERVED NO. 1 OF 2022 [2023] SASCA 109 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle) 12 October 2023 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY The respondent was charged with the murder of Nigel Thomas Lawrie. The cause of death was a single stab wound inflicted by the respondent at one of two locations during an altercation. The Primary Judge gave an extended unanimity direction to the jury. Namely, to find the respondent guilty the jury had to be satisfied beyond reasonable doubt of the precise location where the stabbing occurred, failing which they could not convict. The jury found the respondent not guilty of murder and the alternative charge of manslaughter. Three questions were reserved to the Court of Appeal. Questions One and Two ask whether it was correct for the Primary Judge to give the extended unanimity direction. Question Three asks whether it was consistent with the prosecutorial duty to conduct a case fairly to change the prosecution position after the close of evidence. Held (the Court) as to the answers to the questions of law reserved: 1. No. 2. No. -- 1 of 56 -- 3. Not answered. Criminal Law Consolidation Act 1935 (SA) s 140; Criminal Procedure Act 1921 (SA) ss 151, 153, 155; Juries Act 1927 (SA) s 57; Statutes Amendment (Criminal Procedure) Act 2005 (SA) s 153, referred to. Australian National Railways Commission v Beesley (1999) 73 SASR 414; Chapman v The Queen (2013) 232 A Crim R 500; Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; Dookheea v The Queen [2016] VSCA 67; Fermanis v Western Australia (2007) 33 WAR 434; KBT v The Queen (1997) 191 CLR 417; Lane v The Queen (2018) 265 CLR 196; Lane v The Queen [2017] NSWCCA 46; McCarthy v The Queen (2015) 124 SASR 190; Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373; Magnus v The Queen (2013) 41 VR 612; Meyers v The Queen (1997) 147 ALR 440; Pratten v R [2014] NSWCCA 117; R v Boreman [2000] 1 All ER 307; R v Clarke and Johnstone [1986] VR 643; R v Cramp (1999) 110 A Crim R 198; R v Dally (2000) 115 A Crim R 582; R v Garner; R v Webb [2021] SASCA 68; R v Klamo (2008) 18 VR 644; R v Heaney (2009) 22 VR 164; R v Koko [2022] QCA 216; R v Leivers and Ballinger [1999] 1 Qd R 649; R v McCarthy (2015) 124 SASR 190; R v Marshall [2023] SASCA 105; R v Moffatt (2002) 112 A Crim R 201; R v More (1988) 86 Cr App R 234; R v Pacitti [2022] SASCA 108; R v PL (2009) 199 A Crim R 199; R v Puckeridge (1999) 74 ALJR 373; R v Rigby (1956) 100 CLR 146; R v Smith [1997] 1 Cr App R 14; R v Walsh (2002) 131 A Crim R 299; Rapson v WorkCover Corporation (2007) 98 SASR 86; Ribbon v The Queen (2019) 134 SASR 328; Royall v The Queen (1991) 172 CLR 378; Sadler v The King [2023] SASCA 63; Southern Adelaide Health Service Inc v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556; The Queen v PL (2009) 261 ALR 365; Wilson v The Queen [2016] VSCA 62; Zandipour v The Queen (2017) VR 257, considered. -- 2 of 56 -- QUESTION OF LAW RESERVED NO. 1 OF 2022 [2023] SASCA 109 Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA LIVESEY P: Introduction 1 This case is concerned with whether the trial judge should have given the jury an “extended unanimity” direction in the respondent’s trial on a charge of murder concerning the deceased, Nigel Thomas Lawrie.1 2 The respondent was acquitted of the murder charge. Relying on the power to reserve questions under s 153(4) of the Criminal Procedure Act 1921 (SA) (CPA), the Director of Public Prosecutions (SA) (the Director) reserved the questions set out in the reasons of Lovell JA, submitting that the “extended unanimity” direction was not required. 3 The right invoked by the Director under s 153(4) of the CPA requires that the court before which a person has been tried and acquitted must, on an application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Court of Appeal.2 This Court must determine the questions of law reserved and not any questions of fact.3 By s 155(2)(c) of the CPA, no determination or order made following a trial by jury can invalidate or otherwise affect the acquittal.4 In overview – no direction as to extended unanimity required 4 I gratefully adopt the detailed statement of the facts set out in the reasons of Lovell JA and will repeat those only in so far as it is necessary to explain my reasons. I agree, for the reasons given by Lovell JA, that it is appropriate to answer questions 1 and 2, but not necessary to answer question 3. 1 The respondent was convicted on a charge of aggravated causing harm with intent to cause harm to Danielle Smith. 2 By s 151 of the Criminal Procedure Act 1921 (SA) the term “issue antecedent to trial” is defined as a question as to whether proceedings on an information, or a count on an information, “should be stayed on the ground that the proceedings are an abuse of process of the court”. 3 See, in addition to the cases cited by Lovell JA, being Southern Adelaide Health Service Inc v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556, [74] (Debelle J, with whom Anderson J agreed); Rapson v WorkCover Corporation (2007) 98 SASR 86, [14] (White J, with whom Duggan and Kelly JJ agreed); Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373, 381 (Isaacs J); R v Rigby (1956) 100 CLR 146, 151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ); Australian National Railways Commission v Beesley (1999) 73 SASR 414, 420-421 (Lander J). 4 The procedure to be adopted is governed by s 154 and the orders that may be made are governed by s 155 of the Criminal Procedure Act 1921 (SA), R v Marshall [2023] SASCA 105, [44]-[50]. But see R v Garner; R v Webb [2021] SASCA 68 and R v Pacitti [2022] SASCA 108 where re-trials were ordered following acquittals after a trial by judge alone, under s 157(1)(b)(i) of the CPA. -- 3 of 56 -- [2023] SASCA 109 Livesey P 2 5 In my opinion, it was not necessary to give a direction that the jury agree on whether the fatal stabbing wound occurred in the garden and driveway, or on the roadway. 6 Whether an extended unanimity direction is required must be determined in a practical rather than technical way. The determination commences with the identification of the offence charged and the offending alleged. It extends to the way the case for the prosecution is left to the jury and whether there are two or more ways of identifying an essential element of the offending (often but not always the actus reus) or, by contrast, merely two or more evidential pathways to proof of an essential element of the offending. 7 The determination will involve an evaluation of the live issues remaining for decision at the close of the evidence, including whether they involve materially different issues or consequences, such as to whether there arise materially different causes of death or defences on each pathway. That may call for the exercise of a fine judgment, involving questions of both fact and degree. 8 Where the facts and presentation of the prosecution case suggest different evidentiary pathways, but not materially different issues and consequences in connection with the determination of guilt, cases such as Royall v The Queen,5 R v PL,6 R v McCarthy,7 and Zandipour v The Queen,8 suggest that unanimity about those pathways in proof of an essential element of the offence is not required, particularly if the offending can be characterised as involving one transaction. By contrast, cases such as R v Klamo9 suggest that where the prosecution case relies on two or more distinct incidents, each representing a different way of identifying an essential element of the offending, the jury must be agreed about what comprised the essential element. 9 The offending in this case was alleged to have occurred in the course of an ongoing altercation involving one fatal stab wound. There was only one cause of death. If the jury determined that it was the respondent who inflicted the fatal wound, any uncertainty as to where and when that occurred was of little moment. Unlike Lane v The Queen,10 though the two potential locations were in this case both close in distance and separated by a short period of time, there were no materially different issues and consequences depending on where and when the 5 Royall v The Queen (1991) 172 CLR 378, 404-405 (Brennan J). See also KBT v The Queen (1997) 191 CLR 417, 422-423, 436-437 (Brennan CJ, Toohey, Gaudron and Gummow JJ); R v Leivers and Ballinger [1999] 1 Qd R 649, 658 (Fitzgerald P and Moynihan J). 6 R v PL (2009) 199 A Crim R 199, [47]-[49] (Spigelman CJ, with whom McClellan CJ at CL and RA Hulme J agreed)). See also R v Puckeridge (1999) 74 ALJR 373; R v Moffatt (2002) 112 A Crim R 201. 7 McCarthy v The Queen (2015) 124 SASR 190 (Peek J). 8 Zandipour v The Queen (2017) 53 VR 256 (Zandipour) (Warren CJ, Weinberg and Kaye JJA). 9 R v Klamo (2008) 18 VR 644, [75] (Maxwell P, with whom Vincent and Neave JJA agreed). 10 Lane v The Queen (2018) 265 CLR 196. -- 4 of 56 -- [2023] SASCA 109 Livesey P 3 fatal stabbing occurred. Like Zandipour, any differences in the defence contentions based on the different locations were immaterial. 10 An extended unanimity direction was therefore not required. The requirement for an extended unanimity direction 11 As it was contended that the evidence in this case revealed more than one pathway to proof of guilt, the question for the trial judge was whether it was necessary to direct the jury that they need be unanimous as to both the verdict and the particular pathway by which that verdict was reached. 12 The respondent and the deceased were involved in an altercation that moved from the garden and driveway onto the roadway in front of a house in Elizabeth Grove, north of Adelaide. It was contended by the defence that the respondent was acting in self-defence or in defence of his property and another. The deceased was killed as the result of the infliction of one stab wound to the back, which pierced his lung. The evidence showed that it was the respondent who was wielding a knife during the altercation. Evidence from CCTV footage and witnesses was inconclusive as to precisely where and when the stab wound was inflicted. It could have been in the garden and driveway or it could have been on the roadway. 13 In this case it was submitted that the different pathways to guilt were represented by whether the fatal stabbing wound was inflicted in the driveway and garden or on the roadway. Before the trial, the prosecution refused to elect as to where the fatal wound was inflicted, and the trial judge refused to permanently stay the prosecution in the absence of an election. In opening, the prosecution submitted that the fatal wound was possibly inflicted in the driveway but most likely inflicted moments later, off camera. 14 Although the defence sought an extended unanimity direction, that was opposed by the prosecution on the basis that there was only one wound and the events, whether in the garden and driveway or on the roadway, represented one continuous incident. Ultimately the trial judge gave an extended unanimity direction, for the reasons and in the terms set out in the reasons of Lovell JA. Effectively the jury had to be agreed about whether the stabbing occurred in the garden and driveway or on the roadway, failing which they could not convict. 15 The two questions before this Court reflect the directions given by the trial judge as to murder (Question 1) and as to manslaughter (Question 2). 16 In many of the cases reference is made to whether the “live issues” apparent at the end of the evidence require a unanimity direction. The reference to “live issues” is usually traced back to R v More, where Lord Ackner explained that whether a direction for unanimity is required depends “essentially upon the precise -- 5 of 56 -- [2023] SASCA 109 Livesey P 4 nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”.11 17 In a passage which has been cited many times, the Victorian Court of Appeal in R v Walsh later drew a distinction between two kinds of case.12 The first was “exemplified by the cases concerning murder and manslaughter”, where “alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts”.13 In that kind of case, no unanimity direction is required about one or more of those bases, at least where they do not “involve materially different issues or consequences”.14 As the Court of Appeal explained regarding this first kind of case:15 The clearest example of the jury's being permitted in such cases to arrive at the result by different routes is to be found where the Crown puts its case in the alternative, being unable to choose between them. It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required. That has been so, it seems,16 since Swindall v. Osborne17 in which the victim was killed by one of two carts, the driver of one inciting the driver of the other to kill the deceased. The conviction of one driver was upheld because, if he was not the principal, he was an accessory, having incited the other. See also, on murder and manslaughter, R v White,18 R v Giannetto19 (drawing on R v Thatcher20), R v Serratore21 and R v Leivers and Ballinger.22 18 The Court gave as an example of this first kind of case R v Cramp, where the accused was found guilty of manslaughter after plying a teenage girl with alcohol and then, over some hours, urging her to drive his car at speed.23 The case went to the jury on the basis that death resulted from either or both the accused’s unlawful and dangerous act, or from his gross negligence. No direction was given that the jury had to be unanimous about the relevant basis for a finding of guilt. 11 R v More (1988) 86 Cr App R 234, 252 (Lord Ackner) 12 R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston J agreed), following an extensive review of the authorities. 13 R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston JA agreed). The Court referred, amongst many others, to R v Clarke and Johnstone [1986] VR 643, 661 (Crockett, McGarvie and Southwell JJ) and R v Dally (2000) 115 A Crim R 582, 591 (Smart AJ, with whom Sully J and Carruthers AJ agreed). 14 R v Leivers and Ballinger [1999] 1 Qd R 649, 662 (Fitzgerald P and Moynihan JA), referring to the reasons of Lamer J in Thatcher v The Queen (1987) 39 D.L.R. (4th) 275, see also R v Walsh (2002) 131 A Crim R 299, [44]-[48], [57] (Phillips and Buchanan JJA, with whom Ormiston J agreed). 15 R v Walsh (2002) 131 A Crim R 299, [45]-[46] (Phillips and Buchanan JJA, with whom Ormiston J agreed). 16 R v Cramp (1999) 110 A Crim R 198, 207 (Barr J, with whom Sully and Ireland JJ agreed). 17 (1864) 2 Car & K 230. 18 (1989) 41 A Crim R 237. 19 [1997] 1 Cr App R 1. 20 (1987) 39 DLR (4th) 275. 21 (1999) 48 NSWLR 101. 22 [1999] 1 Qd R 649. 23 R v Cramp (1999) 110 A Crim R 198. -- 6 of 56 -- [2023] SASCA 109 Livesey P 5 19 The conviction in R v Cramp was upheld by the Court of Criminal Appeal of New South Wales because the jury had to consider the whole of the accused’s conduct in deciding whether he caused the death by his unlawful and dangerous act or by his gross negligence. Whilst the jury’s process of reasoning was different, each basis rested on substantially the same facts and the difference was only as to “the legal formulation of liability”, where those alternative bases “did not involve materially different issues or consequences”.24 20 The second kind of case described by the Court of Appeal in R v Walsh concerned the charging of one offence where a number of discrete acts is relied upon as proof, but where proof of any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient or element of the crime charged, the jury cannot convict unless they are agreed about the act which constitutes the essential element. That is, the jury must be unanimous about the factual basis of an essential element of a charge where the evidence suggests alternative possible factual bases.25 Within this second kind of case the Court of Appeal in R v Walsh drew a distinction between cases where what is in issue is an essential element of the charge, or merely an available evidential pathway to proof of the essential element:26 When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud. 21 An example of this second kind of case is provided by the English case of R v Smith, which concerned a charge of affray. In that case there was conduct inside and outside a house. The jury was not directed that they had to be satisfied that the evidence, either inside the house or outside the house, constituted the offence of affray. This left open the possibility that some of the jury may have found the offence proved by what happened inside the house, but some may have found the offence proved by what happened outside the house. In that event the jury as a whole would not have been satisfied that an affray was committed on either basis. The Court of Appeal held that this involved a misdirection:27 [Affray] typically involves … a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on 24 R v Cramp (1999) 110 A Crim R 198, 207 (Barr J, with whom Sully and Ireland JJ agreed), citing R v Leivers (1998) 101 A Crim R 175, 188 (Fitzgerald P and Moynihan J). 25 This proposition was described by Fagan J in Lane v The Queen [2017] NSWCCA 46, [136], as “well-established”, citing R v Smith [1997] 1 Cr App R 14; R v Boreman [2000] 1 All ER 307; R v Walsh (2002) 131 A Crim R 299; Pratten v R [2014] NSWCCA 117. 26 R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston J agreed). See, more recently, Fermanis v Western Australia (2007) 33 WAR 434, [61] (Steytler P, with whom Roberts-Smith and McLure JJA agreed). 27 R v Smith [1997] 1 Cr App R 14, 17 (Birmingham LCJ). -- 7 of 56 -- [2023] SASCA 109 Livesey P 6 particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents. ... It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate mêlée such as constitutes the typical affray was proved to the requisite standard. Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence. 22 Another example of a case coming within the second kind of case described in R v Walsh is provided by R v Klamo, a manslaughter case involving two incidents which separately or in combination might have accounted for death, albeit one or two weeks apart.28 The accused in R v Klamo was convicted of the manslaughter of his four-week-old son. Death was caused by a subdural haemorrhage which occurred in the 24 hours before death. The pathology evidence was that the haemorrhage may have been caused by indirect trauma such as shaking. The accused had admitted to police that he had shaken his son one or two weeks before he died. The prosecution case left to the jury was that death may have been caused by a spontaneous re-bleed from a subdural haemorrhage caused by the shaking one to two weeks earlier, or the accused may have shaken his son on the morning of his death. 23 The Court of Appeal in Klamo held that the trial judge should have given a unanimity direction because the jury could not convict without being agreed as to the actus reus. That is, as to which act by the accused constituted the crime:29 Although the presentment charged only that the applicant had killed the child, the case against him was that he was guilty of manslaughter by dangerous and unlawful act. Proof of an act having both those characteristics was essential to conviction. The prosecution relied on – and the judge left to the jury – two ‘discrete acts’, some days apart, each of which was said to be capable of constituting the crime charged. On the authority of Walsh – and the cases on which the analysis was based – the jury could not convict unless they were ‘agreed upon that act which, in their opinion, does constitute’ the crime. 24 This passage was obiter, expressed without detailed reasoning. Unlike this case, the question of extended unanimity was not agitated at the trial and did not emerge until the permission hearing before the Court of Appeal.30 25 In fact, the Court in Klamo found that the verdict was unreasonable and the accused was acquitted. In part this was because the pathology evidence from 28 R v Klamo (2008) 18 VR 644, [8] (Maxwell P, with whom Vincent and Neave JJA agreed on this issue). 29 R v Klamo (2008) 18 VR 644, [76] (Maxwell P, with whom Vincent and Neave JJA agreed). 30 R v Klamo (2008) 18 VR 644, [2]-[3], [77] (Maxwell P, with whom Vincent and Neave JJA agreed). -- 8 of 56 -- [2023] SASCA 109 Livesey P 7 Professor Cordner was “essentially, negative” and did not permit the drawing of inferences to the requisite standard. The evidence of Professor Cordner was largely unchallenged and to the effect that none of the three possible causes of the death of child were likely, though he could not rule them out:31 • Professor Cordner was satisfied that the cause of death was not a spontaneous re-bleed; • there were none of the usual signs (bruising or retinal haemorrhages) to make shaking “a real possibility”; and • there was no bruising to indicate blunt trauma. 26 President Maxwell criticised the direction to the jury that it was their task to determine the cause of the fatal subdural haemorrhage because the jury was not conducting an inquest into the cause of death, nor was it confined to one of the three possibilities identified on the evidence of Professor Cordner.32 Klamo should be seen as a case where extended unanimity was necessary because the prosecution relied on two different acts, each of which was capable of causing death and comprising the essential physical element or actus reus of the crime charged. 27 In R v McCarthy,33 a case of murder involving either or both of striking and asphyxiation, the majority held that an extended unanimity direction was not required.34 Justice Peek reviewed in some detail what he described as “the rise of extended jury unanimity” since 1988.35 His Honour postulated three doctrines concerning alternate bases of liability, as follows:36 Three doctrines of alternate bases of liability When one moves to cases decided in the context of the law of homicide, one faces, at least in South Australia, a common law offence with a long, unique history and with complex origins and development of its various elements and defences.37 However, without dwelling too much on such matters, it is possible to say that the common law has now evolved to the 31 R v Klamo (2008) 18 VR 644, [41]-[42] (Maxwell P, with whom Vincent agreed), [88]-[96] (Neave JA). 32 R v Klamo (2008) 18 VR 644, [70] (Maxwell P, with whom Vincent and Neave JJA agreed), “The jury’s function was not to find the cause of death but to decide whether they were satisfied beyond reasonable doubt that the applicant had caused the death by an unlawful and dangerous act. Had it been necessary to do so, I would have concluded that this misdirection had, in the context of the medical evidence which had been led, produced a miscarriage of justice.” 33 R v McCarthy (2015) 124 SASR 190. 34 R v McCarthy (2015) 124 SASR 190, [314], [323] (Peek J), [124] (Gray J), [10] (Kourakis CJ not deciding). 35 R v McCarthy (2015) 124 SASR 190, [230] ff (Peek J). 36 R v McCarthy (2015) 124 SASR 190, [225]-[228] (Peek J). 37 While some aspects have been abolished or modified in South Australia, much of its traditional common law content remains. Any precise review of the development of the law of homicide would have to include consideration of the development and changes in criminal procedure including such matters as the felony/misdemeanour distinctions, common law procedure and the impact of local legislation upon these matters. -- 9 of 56 -- [2023] SASCA 109 Livesey P 8 position where there may be said to be three doctrines of alternate bases of liability. These doctrines are considered in further detail below but may be summarised as follows. The first doctrine is that of alternate party bases of liability. This refers to a situation where the factual basis is relatively stable and a question arises as to the extent to which the accused can be convicted on different party bases on a common substratum of fact. In common law terms, such different degrees of party liability might be referred to as accessory before the fact or principal in the first, second or third degree. Examples of a form of this alternate party bases of liability doctrine may be found as early as the decision in R v Swindall and Osborne,38 and probably earlier. In Swindall, the victim was killed by one of two carts (it was unknown which), the driver of each encouraging the other to drive dangerously. It was held that since the accused was one of the two drivers, and had the required mens rea for manslaughter, it was unnecessary for a jury to be satisfied whether the accused was the primary actor or the person encouraging the primary actor. The jury were directed that either driver (or both) could be convicted of manslaughter, even though it were unknown which cart hit the victim, because if a particular accused was not the principal actor, then he was an accessory encouraging the other driver. The second doctrine is that of alternate legal bases of liability, a situation where the factual basis is again relatively stable and the question arises as to the extent to which the accused can be convicted on different legal bases on a common substratum of fact. This second doctrine is broader than the first in that it includes different party bases but also includes different legal conclusions such as different routes to a verdict of manslaughter39 or different routes to a verdict of murder.40 The third doctrine is that of alternate factual bases of liability, a situation where the party or legal basis is relatively stable41 but a question arises as to the extent to which the accused can be convicted on different factual bases available on the evidence in the case. (Bold emphasis added.) 28 Justice Peek concluded that the prosecution case concerned one continuous process of assault. There were no issues as to alternate parties or legal bases of liability. In the case of the alternate factual bases, he explained that if all of the accused’s alternative acts relied upon by the prosecution, having regard to their time, place or nature, could be considered as “relating to one transaction”, extended jury unanimity would not generally be required.42 29 Chief Justice Kourakis emphasised that it would be necessary to consider whether the two postulated cases were mutually destructive, whereas Gray J emphasised that both the striking and the asphyxiation occurred in the course of one assault.43 38 (1846) 3 Car & Kir 230; 175 ER 95. 39 A jury may have to consider whether the same facts with little variation may give rise to a verdict of manslaughter on the bases of either provocation, unlawful and dangerous act or gross negligence. 40 A jury may have to consider whether the same facts with little variation may give rise to a verdict of murder on the bases of either: an intention to kill; an intention to inflict grievous bodily harm; recklessness as to either of the previous two; or via a felony murder type rule or statutory provision. 41 For example, where the only liability suggested is that of principal in the first degree. 42 R v McCarthy (2015) 124 SASR 190, [225]-[228], [306] (Peek J). 43 R v McCarthy (2015) 124 SASR 190, [5] Kourakis CJ, [121]-[122] (Gray J). See also [314]-[322] (Peek J). -- 10 of 56 -- [2023] SASCA 109 Livesey P 9 30 The decisions of the New South Wales Court of Criminal Appeal and the High Court in Lane v The Queen concerned a murder prosecution involving two incidents. The incidents occurred during an altercation between the accused and the deceased. The accused was convicted of manslaughter. 31 Lane v The Queen is a case which comes within the second kind of case described by the Court of Appeal in R v Walsh, as well as within the qualification to the first kind of case, for it is a case of murder or manslaughter where there were one or more factual bases for liability which “involve[d] materially different issues or consequences”.44 32 The offending alleged in Lane v The Queen comprised the accused causing the deceased to fall to the ground on two occasions, striking his head. The first occasion may not have involved the accused punching the deceased, but the second certainly did. The pathology evidence was that death may have been caused by either or both head strikes on the ground. That represents a key difference between that case and this. 33 In Lane v The Queen the Court of Criminal Appeal held that an extended unanimity direction was required. The difference between the majority and minority in the Court of Appeal was over whether the proviso could be applied. The High Court held that the proviso could not be applied. Before applying the proviso, the majority referred with approval to R v Walsh, and held:45 … in the absence of [a unanimity direction] it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant’s voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall. That possibility was not excluded by the trial judge’s general direction as to unanimity … which accommodates only the circumstance that the same facts may support alternative legal bases of guilt. 34 Before declining to apply the proviso, Fagan J held that the evidence did not permit the treatment of the two occasions as “constituting a single incident comprised of multiple contacts … which need not be distinguished from each other”. That was because the “contact between the two men was not so continuous or unified as to allow the case to be presented … as one of a single, composite assault”.46 44 R v Walsh (2002) 131 A Crim R 299, [47] citing Leivers and Ballinger [1999] 1 Qd R 649, 662. 45 Lane v The Queen [2017] NSWCCA 46, [43] (Meagher JA and Davies J), having observed at [18]-[19] that R v Walsh had been cited with approval in Chapman v R (2013) 232 A Crim R 500, [28] (Adamson J, with whom Hoeben CJ at CL and Davies J agreed); Pratten v R [2014] NSWCCA 117, [45] (Meagher JA, Fullerton and Hamill JJ); Magnus v The Queen (2013) 41 VR 612, [35]-[37] (Buchanan, Ashley and Redlich JJA); Wilson v The Queen [2016] VSCA 62, [32] (Weinberg AP, Priest and Beech JJA); Fermanis v The State of Western Australia (2007) 33 WAR 434, [68]-[69], [73] (Steytler P, with whom Roberts-Smith and McLure JJ agreed). 46 Lane v The Queen [2017] NSWCCA 46, [111] (Fagan J). -- 11 of 56 -- [2023] SASCA 109 Livesey P 10 35 Justice Fagan held that the case did not come within the principle that, where an accused kills another by one or other of two or more different acts, each of which was sufficient to establish murder if it caused death, it is not necessary to prove which act caused the death.47 Rather, in the case before him:48 … there were in the present case very significant live issues bearing upon whether there had occurred either of the two alleged acts of the appellant (that which caused the first fall and that which caused the second). Further, there were issues as to whether either, if proved, was “a sufficient act to establish murder”. Namely, the issues of whether any act which might be found proved had been accompanied by the requisite intent and whether, if so, it had been self-defensive. Those additional issues might well be resolved with different results as between the appellant’s actions alleged to have caused the first fall and his actions alleged to have caused the second. The evidence upon which his intent (issue (2)) and any perception of a need to defend himself (issue (3)) could be inferred was entirely distinct as between the two alleged occurrences. 36 These “live issues” were explained in some detail by Fagan J as follows:49 … by the time his Honour came to sum up the following were live issues: (1) Whether the Crown had proved beyond reasonable doubt that a voluntary act or acts of the appellant had caused either or both of the falls in which the deceased struck his head on the roadway. (2) With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant, whether the Crown had proved the appellant intended to cause death or grievous bodily harm by the voluntary act (or acts). (3) With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant accompanied by intent to cause either death or grievous bodily harm, whether the Crown had proved there was no reasonable possibility (a) that the appellant acted in the belief it was necessary to defend himself or (b) that his actions were a reasonable response to what he perceived as the need to defend himself. (4) With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant but not accompanied by intent to cause either death or grievous bodily harm, whether the Crown had proved that the appellant’s conduct (a) constituted an unlawful act; (b) involved an appreciable risk of causing serious harm to the deceased and (c) was such that a reasonable person in the position of the accused would have appreciated the risk of serious harm. 47 Lane v The Queen [2017] NSWCCA 46, [140] (Fagan J), citing Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705, 710 (Ackner LJ). 48 Lane v The Queen [2017] NSWCCA 46, [140] (Fagan J). 49 Lane v The Queen [2017] NSWCCA 46, [134]-[135] (Fagan J). -- 12 of 56 -- [2023] SASCA 109 Livesey P 11 The need for unanimity on the actus reus Each of the issues identified at (2), (3) and (4) in the previous paragraph could only be considered in relation to one or the other or both of the falls. There could not be unanimity on a verdict of guilty (of either murder or manslaughter) unless the jury were unanimous, as a starting point, as to what act the appellant had committed which was (a) causative of the deceased’s head striking the roadway and, hence, (b) causative of his death (issue (1)). ... The jury could only deliberate towards findings on the three further issues (which, again, would have to be unanimous) if they were first unanimously agreed as to what was the act of the appellant which may or may not have been accompanied by the requisite intent (issue (2)), may or may not have flowed from a perceived need for self defence (issue (3)) and may or may not have been unlawful and dangerous (in the sense necessary to sustain manslaughter by unlawful and dangerous act) (issue (4)). 37 In the course of addressing the proviso issue, the High Court held that an extended unanimity direction was required because the jury had to agree on the action by the appellant which caused the deceased’s fatal injury. Absent the requisite unanimity there remained uncertainty about the basis for the verdict. There remained live issues about the dangerousness of the appellant’s actions and about self-defence preceding the second fall. It was necessary that the jury be directed about “the different circumstances bearing upon these issues … in relation to each of the potentially fatal interactions between the appellant and the deceased”.50 38 Subsequently, in Ribbon v The Queen the Court of Criminal Appeal of South Australia determined that an extended unanimity direction was required in a drug importation case.51 Peek J reviewed his reasons in McCarthy v The Queen in light of the High Court’s decision in Lane v The Queen. His Honour concluded that an extended unanimity direction was required:52 The development of the first two of these doctrines in Australia was explored in McCarthy,53 but clearly it was the third category of alternate factual bases of liability that was involved in each of McCarthy itself and the homicide cases of Klamo and Lane and the present case of Ribbon. In McCarthy, I was of the view that Klamo was rightly decided but was to be distinguished on the facts from McCarthy for reasons reproduced above.54 It will be for others to say whether the factual decision in McCarthy may also be distinguished from that in Lane when considering this third category of alternate factual bases of liability. I simply note that the judgments in Lane had no need to address what I have called the first two categories of cases (alternate party bases of liability and alternate legal party bases of liability); but it is fairly safe to say that further discussion awaits. As for the present case, in my view the facts clearly fall on the side of the line requiring an extended unanimity of verdict direction. That was apparent on the state of the authorities as 50 Lane v The Queen (2018) 265 CLR 196, [45] (Kiefel CJ, Bell, Keane and Edelman JJ) citing Lane v The Queen [2017] NSWCCA 46, [135], [142] (Fagan J). 51 Ribbon v The Queen (2019) 134 SASR 328, [75]-[81] (Peek J, with whom Parker J agreed). 52 Ribbon v The Queen (2019) 134 SASR 328, [75]-[81] (Peek J, with whom Parker J agreed). 53 (2015) 124 SASR 190, 265–272, [256]-[276]. 54 (2015) 124 SASR 190, 282–285. The position for Mr McCarthy was moot in that the appeal was allowed on another ground. -- 13 of 56 -- [2023] SASCA 109 Livesey P 12 they were at the time of McCarthy and is even the clearer in the light of the subsequent decisions in Lane. I have decided this case by reference to that decision and the authorities referred to therein.55 39 In separate reasons, Doyle J agreed and referred to the decision in R v Walsh explaining his approach in the following terms:56 In my view, the two categories of case referred to by Phillips and Buchanan JJA in the passage from their reasons to which I have referred raise quite different considerations. I consider that the present case falls within the second category of case identified by their Honours; that is, where one offence is charged but the prosecution relies upon more than one discrete act as independently capable of proving an essential ingredient of the charged offence. In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation. In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree. 40 Recently, and by contrast, in R v Koko the Queensland Court of Appeal rejected the need for an extended unanimity direction in a case where the accused had pleaded to manslaughter, but that plea was not accepted and the case went to trial on murder.57 The only issue concerned the accused’s intention, for his plea demonstrated that he had unlawfully killed the deceased. 41 The complication in that case was that it could not be determined which of a number of blows inflicted by the accused in an assault on the deceased was fatal. As to this, the jury were directed that they had to be persuaded beyond reasonable 55 I have had regard to the decisions of this Court in R v Tassone [2016] SASCFC 146 and R v Nikolic [2019] SASCFC 32 but I do not consider that they govern the outcome of the present case. 56 Ribbon v The Queen (2019) 134 SASR 328, [259]-[261] (Doyle J, with whom Parker J also agreed). 57 R v Koko [2022] QCA 216. -- 14 of 56 -- [2023] SASCA 109 Livesey P 13 doubt that, whatever were the acts which substantially contributed to death, they were committed with the requisite intent to cause death or grievous bodily harm. 42 Justice Flanagan, with whom Mullins P and Dalton JA agreed, referred to Country Care v Director of Public Prosecutions (Cth),58 before holding that the direction given that the jury be unanimous about the element of intention was sufficient.59 43 A recent example of the second kind of case referred to in R v Walsh is provided by Sadler v The King,60 where there was scope for disagreement about the evidentiary pathway that might be taken to satisfaction of an essential element of a charge. There were no alternative allegations or factual uncertainty as to the relevant essential element of the offending. The charge in that case was dishonest dealing with documents, contrary to s 140 of the Criminal Law Consolidation Act 1935 (SA), being the falsity of time books offered in proof of an aspect of a personal injury claim.61 After referring to R v Walsh,62 Magnus v The Queen,63 and Ribbon v The Queen,64 Doyle JA explained that the issue had to be addressed in a practical rather than technical manner:65 It is appropriate to start with the terms of s 140 of the CLCA, and the articulation of the elements of the offence created by that section set out earlier in these reasons. Importantly, the first element of that offence required the production of a document. As explained, the prosecution alleged and ran a case on the basis that the document was the time books, and not any particular entry, page or section of the time books. The second element of that offence required establishing the falsity of that document. The prosecution case was that the time books were false by reference to the overall misleading impression created by those time books as to the hours worked by RS. Importantly, the second element required a focus upon the falsity of the document (the time books), and not the falsity of any particular entry, page or section of those books. In my view, this analysis tends to demonstrate that the falsity of particular entries within the time books was not an essential ingredient of the s 140 offence as the case was alleged 58 Country Care v Director of Public Prosecutions (Cth) (2020) 275 FCR 342, [77]-[80]. 59 R v Koko [2022] QCA 216, [25]-[27] (Flanagan JA, with whom Mullins P and Dalton JA agreed). 60 Sadler v The King [2023] SASCA 63. 61 Sadler v The King [2023] SASCA 63, [11]-[22] (Doyle JA, with whom Bleby JA agreed at [42]). 62 R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston JA agreed). His Honour pointed out that this passage had been followed many times, in Lane v The Queen (2018) 265 CLR 196, [45] (Kiefel CJ, Bell, Keane and Edelman JJ), as well as in Fermanis v Western Australia (2007) 33 WAR 434, [61] (Steytler P, with whom Roberts-Smith and McLure JJA agreed); R v Klamo (2008) 18 VR 644, [75] (Maxwell P, with whom Vincent and Neave JJA agreed); Magnus v R (2013) 41 VR 612, [32] (Buchanan, Ashley and Redlich JJA); R v McCarthy (2015) 124 SASR 190, [117] (Gray J), [282] (Peek J); Lane v The Queen [2017] NSWCCA 46, [18] (Meagher JA and Davies J); Ribbon v The Queen (2019) 134 SASR 328, [65] (Peek J, with whom Parker J agreed), [258] (Doyle J, with whom Parker J agreed); Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (Cth) (2020) 275 FCR 342, [79] (Allsop CJ, Wigney and Abraham JJ). 63 Magnus v The Queen (2013) 41 VR 612. 64 Ribbon v The Queen (2019) 134 SASR 328. 65 Sadler v The King [2023] SASCA 63, [17]-[19] (Doyle JA, with whom Bleby JA agreed at [42]). -- 15 of 56 -- [2023] SASCA 109 Livesey P 14 and presented. Rather, establishing the falsity of particular entries was merely the means of establishing the essential ingredient; namely, the falsity of the time books. 44 The Court determined, by a majority, that an extended unanimity direction was not required. Determination as to the unanimity direction in this case 45 I need not repeat the conclusions expressed at the outset of my reasons. Acknowledging the difficulties in this case, it is closer to the first category rather than the second category of case described in R v Walsh. I gratefully refer to, without repeating, the analysis by Lovell JA of the live issues in this case which were left for decision by the close of the evidence, particularly as to the way in which the jury could have been directed, as well as the analysis by Doyle JA of the distinguishing features in cases such as Klamo and Lane v The Queen. 46 The relevant determination is here governed by the fact that there was only one relevant stabbing, and only one cause of death, with the result that there could be no relevant uncertainty in the prosecution case presented to the jury for verdict. This therefore is a case like those involving one transaction, where it would have been sufficient for the jury to be agreed about whether the respondent was the offender who wielded the knife with the intention of causing death or really serious harm at either location. 47 The difficulty in this case is produced primarily by the potential defences arrayed in answer to the prosecution case at each location. However, on the facts of this case, those defences were broadly common to both locations, separated as they were by a few metres and a short period of time. It may well be otherwise in cases where the potential basis for the verdict on the essential elements of the offending is both uncertain and complicated by materially different issues or consequences arising on the different pathways to proof of guilt, with the result that the case cannot properly be characterised as involving one transaction. Conclusion 48 I would answer the questions stated for determination as follows: 1. No. 2. No. 3. Not answered. -- 16 of 56 -- [2023] SASCA 109 Lovell JA 15 49 LOVELL JA: Hadyn John Sansbury (‘the respondent’) was tried before a jury on the charges of murdering Nigel Thomas Lawrie (‘the deceased’) (‘Count 1’) and aggravated causing harm to Danielle Smith with intent to cause harm (‘Count 2’). The respondent was found not guilty of Count 1 including the alternative charge of manslaughter. He was found guilty of Count 2. 50 The Primary Judge, on the application of the Director of Public Prosecutions (‘the applicant’), reserved two questions on issues that arose in the course of the trial for consideration and determination by the Court of Appeal. The respondent applied to the Primary Judge to reserve a further question. 51 The source of all three questions related to the extended unanimity direction given by the Primary Judge. The applicant submitted that on the facts of the case such a direction was unnecessary. Questions reserved 52 Section 153(4) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) relevantly provides that a Court before which a person has been tried and acquitted of an offence must, on application by the Director of Public Prosecutions, reserve questions arising in the course of the trial for consideration and determination by the Court of Appeal. Section 155(2)(c) of the CPA provides that if the accused has been acquitted at trial, no determination or order of the Court of Appeal can invalidate or otherwise affect the acquittal. 53 Extended jury unanimity requires that, in finding an accused guilty, the jury is unanimous not only as to its ultimate verdict but also unanimous as to the route or pathway by which that verdict was reached. 54 The Primary Judge reserved the following questions for consideration and determination by the Court of Appeal: 1. On the evidence, and as a matter of law, was I right, in directing the jury on the first element of the offence of murder, to direct that it was necessary that the jury be unanimously agreed as to which of the two possible locations at which the single stab wound causing death could have been inflicted, was inflicted, and who inflicted the injury before the jury could proceed to consider the other elements of the offence of murder? 2. On the evidence, and as a matter of law, was I right, in directing the jury on the first element of the offence of manslaughter, to direct that it was necessary that the jury be unanimously agreed as to which of the two possible locations at which the single stab wound causing death could have been inflicted, was inflicted, and who inflicted the injury before the jury could proceed to consider the other elements of the offence of manslaughter (noting that I did not make clear that unanimity of the majority was required after four hours)? -- 17 of 56 -- [2023] SASCA 109 Lovell JA 16 3. Is it consistent with the prosecution duty to conduct the case fairly, to provide particulars and open its case on the basis of what the prosecution argues is two alternative locations at which the act causing death might have occurred and what the defence argues is two alternative pathways to guilt and then, after the close of evidence, on what the defence contends is a change in its position, to: a. First, argue against a unanimity direction on the basis that the events the prosecution argues is two alternative locations at which the act causing death might have occurred and what the defence argues is two alternative pathways to guilt represent a single event; and b. Second, following the argument and my ruling on the unanimity direction, to present the case to the jury in closing on the basis that only one of what the prosecution argues is two alternative locations at which the act causing death might have occurred and what the defence argues is two alternative pathways to guilt, opened upon, namely the stabbing on the roadway, was reasonably possible and that the other, namely the stabbing on the driveway, was “highly unlikely”? Approach of the Court of Appeal 55 The task of the Court of Appeal is to determine questions of law rather than decide disputed questions of fact. It is not open to the Court of Appeal to make its own findings of fact, or even to draw inferences from the facts disclosed to it. The facts stated by the Primary Judge are to be taken as the ultimate facts.66 56 The respondent submitted that as the questions reserved did not contain an agreed statement of facts the questions should not be dealt with. I do not agree. While in some matters a lack of agreement on the facts could be fatal to an application, this is not such a case. The issue arose at trial due to uncertainty in the evidence on the prosecution case. Given the Primary Judge’s directions to the jury, the facts, although disputed, are clearly delineated. Case stated 57 The events the subject of Count 1 occurred in two locations: in the front garden and driveway of the respondent’s home (point A) and then the adjacent roadway (point B). The deceased sustained a single stab wound to his back which caused his death. It was uncertain whether the stab wound was inflicted within the driveway or in the roadway, that is either at point A or point B. Events occurring in the driveway of the respondent’s home were captured by a CCTV camera mounted on the roof of a house on the other side of the road. Some, but not all, of the events on the roadway were captured by the CCTV camera. The prosecution case relied upon eyewitnesses where there was no CCTV footage available. The 66 Southern Adelaide Health Service Inc v C; Case Stated on Acquittal (2007) 97 SASR 556 at [74]; Rapson v WorkCover Corporation (2007) 98 SASR 86 at [14]. -- 18 of 56 -- [2023] SASCA 109 Lovell JA 17 events the subject of Count 2 were captured by the CCTV camera and occurred on the footpath outside the respondent’s home after the events the subject of Count 1. 58 Prior to the commencement of the trial, and at the request of defence, the prosecution filed a document entitled “Further Particulars” that particularised Count 1 in the following terms: … on the Crown case, the stabbing occurred … when Sansbury is depicted in the footage swinging the knife towards the side and back of the deceased with his left hand, or off camera to the right of screen, immediately before Sansbury is seen crossing over the road and allegedly hitting, stabbing and stomping on Dannielle Smith … While either is possible on the available evidence, the Crown case, reliant in part on the anticipated evidence of Neville Pearce, will be the stabbing most probably occurred off camera using a similar motion to what is seen on the CCTV footage. 59 Following receipt of the “Further Particulars”, the defence asked the prosecution to elect as to which incident at which location was relied upon as constituting Count 1. Further, the defence applied for the trial to be permanently stayed until such an election was made. The prosecution declined to make such an election and the Primary Judge declined to stay the proceedings. 60 The events on the driveway of the respondent’s home were detailed during the prosecution’s opening. The prosecution said, with reference to the CCTV footage, “the accused swung or swiped with his left hand in which held the knife coming across Mr Lawrie’s front and around to the opposite side of Mr Lawrie as Mr Lawrie had turned and twisted slightly towards the accused”. The prosecution stated: The knife may have hit at that point. The knife may have missed. If it hit that was the fatal wound. There was only the one knife wound found to Mr Lawrie. If it missed this swing and miss serves as a prelude to what was soon to come: a second attempt with a knife moments later. The prosecution say the second scenario is most likely; that the actual stabbing probably happened moments later just off camera after this first attempt. What can be seen as Mr Lawrie backs away off screen still unarmed is Eric Newchurch going after him unarmed and shirtless like a boxer, and the accused chase after with his knife and paddle. Just off screen, it must have been two-on-one with Lawrie backing away off screen to the right. The last thing one sees at this point is the accused do a little skip and go after Mr Lawrie again. It is at that point, ladies and gentlemen, if he had not already, that the accused must have swung his knife around and into the back of Mr Lawrie, causing the fatal wound. 61 The defence submitted that it was appropriate for the trial Judge to direct the jury that it must be unanimous as to the location at which the act causing death, the single stab wound, was inflicted. -- 19 of 56 -- [2023] SASCA 109 Lovell JA 18 62 The prosecution opposed the proposed direction, contending that because there was one stab wound, the events on the driveway and on the roadway were one continuous incident and therefore no unanimity direction was required. 63 Following argument, the Primary Judge ruled that she intended to give an extended unanimity direction and gave the following reasons: In this matter the prosecution alleges there is only one act which caused death, that is, Haydn Sansbury swinging the knife and connecting with Nigel Lawrie, causing a single penetrative stab wound which penetrated his lung. The prosecution allege this causative act occurred either on the driveway of 10 Afford Street when Haydn Sansbury is seen swinging a knife towards the side and back of Nigel Lawrie on CCTV but says it is more likely it occurred on the other side of Afford Street out of view of the CCTV. The two possible locations for the causative act are distinct in the following aspects: 1. the source of the evidence which supports the occurrence at each location; 2. by virtue of the events depicted in the CCTV footage between the two locations, namely, the action involving Haydn Sansbury, Susan Newchurch, Eric Newchurch, Dannielle Smith, and Nigel Lawrie, which includes Haydn Sansbury being pushed by Nigel Lawrie and falling to the ground and Eric Newchurch following Nigel Lawrie across the road out of view of the CCTV footage; 3. whether the causative act performed at either location was accompanied by the requisite intent and whether it had been self-defensive, defensive of another, or defensive property. The evidence upon which Haydn Sansbury’s intent and any perception of need to defend himself, or another, or his property could be inferred is entirely distinct between the two locations. Accordingly, I intend to give the extended unanimity direction. 64 During her summing up, the Primary Judge directed the jury that they were required to be unanimous as to the location where the stabbing occurred. 65 The extended unanimity direction, the subject of Questions One and Two, did not materially differ between the offences of murder and manslaughter. 66 The jury found the respondent not guilty of Count 1, not guilty of the alternative charge of manslaughter, and guilty of Count 2. Questions One and Two 67 It is a fundamental principle of criminal law that in arriving at their verdict a jury must be agreed that every ingredient necessary to constitute the offence has been established. While the prosecution has the burden of satisfying the jury of an accused’s guilt, a problem that arises is that satisfying the jury is not necessarily the same as satisfying each individual juror. For example, where evidence tendered by the prosecution reveals more than one factual basis for the conclusion that the accused is guilty, the possibility arises that some jurors may be satisfied of the -- 20 of 56 -- [2023] SASCA 109 Lovell JA 19 accused’s guilt only because fact A is proved whereas the others may be satisfied only because fact B is proved. Every juror is satisfied that the accused is guilty but the question remains is the jury so satisfied.67 The question that may arise is whether the jury in the particular case be directed that they not only be unanimous as to the accused’s guilt, but also unanimous as to the route or pathway by which that verdict was reached. 68 The need for an extended unanimity direction can only be assessed and determined at the trial after the evidence has been adduced and the factual issues have crystallised having regard to the way the prosecution and the accused have put their respective cases in relation to those issues.68 69 Questions One and Two ask whether it was correct on the evidence, and as a matter of law, in directing the jury that it was necessary that they were unanimously agreed as to the location at which the single stab wound causing death was inflicted? Law 70 The appellant relies on the submission that in this matter there was only one actus reus involved. It is necessary to give context to that expression as it was common ground that there were two relevant acts of the accused either of which may have led to the infliction of the fatal wound. Some cases referred to later in these reasons do not always distinguish between an act or conduct of an accused and the actus reus of the crime. 71 The expressions actus reus and mens rea come from the latin maxim, actus non facit reum nisi mens sit rea: that is, there is no guilty act without a guilty mind. The expression actus reus does not simply mean an act of an accused. In many crimes, it is an act or conduct that has a particular result. Relevantly, in murder and manslaughter cases it must be shown that an accused’s conduct, that is, his or her act, was a substantial cause of the death of the victim. A “dead man with a knife in his back is not the actus reus of murder. It is the putting the knife in the back thereby causing the death which is the actus reus”.69 Murder and manslaughter cases are crimes where the actus reus of the crime is inextricably linked to the element of causation. That is, while other acts or conduct of an accused may be relevant to the overall circumstances, the actus reus is that which was a substantial cause of death. 72 Identifying the actus reus, and whether the prosecution rely on alternative actus rei are important matters when considering whether an extended unanimity direction is required. The appellant relies on this reasoning to distinguish, 67 See generally JC Smith ‘Satisfying the Jury’ [1988] Crim LR 335. 68 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342 at [76] and [95]. 69 JC Smith and Brian Hogan, Criminal Law (Butterworths, 4th ed, 1978) 33. -- 21 of 56 -- [2023] SASCA 109 Lovell JA 20 factually, many of the cases where general principles relating to unanimity have been applied. 73 It is convenient to consider first the decisions of the NSW Court of Criminal Appeal and the High Court in Lane v The Queen.70 Lane v The Queen (‘Lane’) 74 The appellant was tried on a charge of murder. The prosecution relied upon two physical interactions between the appellant and the deceased, each of which was alleged to have involved a blow by the appellant capable of having caused the death of the deceased. The appellant was acquitted of murder but convicted of manslaughter. 75 The appellant and the deceased were involved in an altercation on a footpath and roadway. Much of the altercation was captured by a CCTV security camera located nearby. The CCTV footage captured two significant events. In the first event, the deceased retreated towards the roadway with the appellant in pursuit. The deceased fell backwards on the roadway and struck his head (the first fall). The appellant then punched another male while, in the meantime, the deceased had risen to his feet again and faced the appellant. In the second event, the deceased could be seen to fall to the roadway a second time (the second fall). At that point he lost consciousness. 76 The CCTV footage did not clearly depict the appellant punching the deceased before either fall. However, the CCTV footage was capable of sustaining a finding that the appellant delivered a powerful punch to the head of the deceased, causing him to fall and strike his head on the ground the second time. A number of witnesses gave evidence about the interactions involving the appellant and the deceased. Each was intoxicated and gave a somewhat different account of what they saw and heard. 77 The prosecution opened its case on the basis that it was a blow by the appellant to the head of the deceased that led to the second fall, and that it was that fall that was fatal. During the trial, the prosecution called a forensic pathologist who had conducted an autopsy on the deceased. The forensic pathologist gave evidence of injuries found on an examination of the head of the deceased but could not relate the temporal sequence of these injuries to the two falls. The forensic pathologist said, "I think – overall obviously it's a combination but … either injury could have led to death on its own”. 78 After the forensic pathologist gave evidence, the case for the prosecution changed. During the prosecution’s final address, it was put to the jury that the actions of the appellant before each fall could found his liability for murder or manslaughter. In relation to the first fall, it was said, by reference to the CCTV footage, that there was a "blow" from the appellant. In relation to the second fall, 70 Lane v The Queen [2017] NSWCCA 46; Lane v The Queen (2018) 265 CLR 196. -- 22 of 56 -- [2023] SASCA 109 Lovell JA 21 it was said that the CCTV footage and the eyewitness accounts established that the appellant landed a punch that caused the deceased to fall again. The Primary Judge directed the jury that it was open to it to find that a deliberate act by the appellant had caused the death of the deceased if it found that either fall was caused by the appellant. 79 By the conclusion of the trial, it was accepted by both the prosecution and the appellant that each of the falls suffered by the deceased was sufficient to have caused his death. Although the prosecution had altered its case in response to the evidence of the forensic pathologist that either fall could have been fatal to the deceased, the appellant did not seek to take advantage of the shift in the prosecution case by raising an issue to the effect that any blow by the appellant that might have led to the second fall was not a sufficient cause of, or contribution to, the death of the deceased because he had suffered a fatal injury by reason of the first fall for which the appellant was not responsible. 80 The appellant appealed against his conviction for manslaughter to the NSW Court of Criminal Appeal.71 The only ground of appeal relevant to the present case was: ‘The primary judge erred in failing to direct the jury that in their consideration of the charge of manslaughter they were to be unanimous in their deliberations as to the factual basis on which they might convict the appellant of manslaughter’. 81 Put another way, was a specific direction required that the jury had to be unanimous as to the voluntary act of the appellant that caused death? All three members of the Court of Criminal Appeal accepted that this ground of appeal was made out.72 82 After considering the issues as they were presented to the jury and the directions of the Primary Judge, Meagher JA and Davies J said:73 What emerges is that in relation to each of the deceased’s falls it was left to the jury to decide whether it was caused by a voluntary act of the appellant. If the jury was persuaded that one or other or both of those falls was caused by a deliberate act of the appellant’s they were invited to consider the other elements necessary for the Crown to establish murder and disprove self-defence, and depending on the way they resolved those questions, the elements of manslaughter by unlawful and dangerous act. Three things follow. The first is that on the Crown case as left to the jury there were two discrete acts which were said to have been deliberate and to have caused death. Each may have been sufficient to establish murder or manslaughter and accordingly was an alternative factual basis of liability. The second is that in such circumstances the jury could not convict of murder or manslaughter unless they were agreed as to whether one or both of those acts was a criminal act of the appellant. 71 Lane v The Queen [2017] NSWCCA 46. 72 Lane v The Queen [2017] NSWCCA 46 at [44] and [108]. 73 Lane v The Queen [2017] NSWCCA 46 at [41]-[44]. -- 23 of 56 -- [2023] SASCA 109 Lovell JA 22 Finally, in the absence of any direction to that effect it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant’s voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall. That possibility was not excluded by the trial judge’s general direction as to unanimity … which accommodates only the circumstance that the same facts may support alternative legal bases of guilt. To remove that possibility the jury should have been directed that they could not convict unless they were agreed as to the voluntary act which resulted in their being satisfied that there should be a verdict of guilty of murder or not guilty of murder but guilty of manslaughter. The trial judge erred in not giving such a direction. 83 Meagher JA and Davies J accepted that the failure of the Primary Judge to give an extended unanimity direction:74 … raised at least as a theoretical possibility that some members of the jury might determine his guilt by reference to the first fall, and others by reason of his having caused the second. Where there were two separate allegedly criminal acts left to the jury, the appellant was entitled to have the jury determine unanimously whether he was guilty in relation to one or other or both of those acts. 84 Fagan J referred to the disparate nature of, and diverse evidentiary support for, the first fall and the second fall, notwithstanding their separation by only about ten seconds.75 Fagan J relevantly said:76 The evidence led by the Crown did not permit treatment of the two occasions on which the deceased fell and struck his head on the roadway as constituting a single incident comprised of multiple contacts by the appellant which need not be distinguished from each other. The alleged contact between the two men was not so continuous or unified as to allow the case to be presented and left the jury as one of a single, composite assault. It was necessary for the jury to discriminate between separable alleged blows or other actions and their respective consequences for the deceased. 85 Fagan J held that there could not be unanimity on a verdict of guilty (of either murder or manslaughter) unless the jury were unanimous, as a starting point, as to what act the appellant had committed that was causative of the deceased’s head striking the roadway and, hence, causative of his death.77 Fagan J made further observations concerning the need for unanimity on the actus reus:78 The necessity to direct the jury that they must be unanimous as to the factual basis of an essential element of a charge, where alternative possible factual bases are presented in the evidence, is well-established … In R v Walsh the court stated that where a number of discrete acts are relied upon as proof of an essential ingredient of an offence and any one of them would entitle the jury to find the charge proved “the jury cannot convict unless 74 Lane v The Queen [2017] NSWCCA 46 at [57]. 75 Lane v The Queen [2017] NSWCCA 46 at [115]. 76 Lane v The Queen [2017] NSWCCA 46 at [111]. 77 Lane v The Queen [2017] NSWCCA 46 at [135]. 78 Lane v The Queen [2017] NSWCCA 46 at [136]-[139]. -- 24 of 56 -- [2023] SASCA 109 Lovell JA 23 they are agreed upon that act which, in their opinion, does constitute that essential ingredient”. … On the present appeal the Crown sought to distinguish R v Klamo by submitting that the acts of the appellant which it had relied upon at trial, being those which caused the first fall and those which caused the second, were not “some days apart” but were separated by only approximately 10 seconds. That is not a point of distinction which would invalidate application of the Victorian Court of Appeal’s reasoning to the present circumstances. Importantly the two causative acts of the appellant which the Crown submitted for the jury’s consideration were distinct in three respects: (a) in character, the first not involving any discernible contact with the deceased, the second consisting in a hard punch; (b) with respect to the source of the evidence which supported them and (c) in giving rise to two separate heavy contacts of the deceased’s head with the roadway. This case did not fall within the principle that “if an accused person kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish murder”, then it is “not necessary to found a conviction to prove which act caused the death” … there were in the present case very significant live issues bearing upon whether there had occurred either of the two alleged acts of the appellant (that which caused the first fall and that which caused the second). Further, there were issues as to whether either, if proved, was “a sufficient act to establish murder”. Namely, the issues of whether any act which might be found proved had been accompanied by the requisite intent and whether, if so, it had been self-defensive. Those additional issues might well be resolved with different results as between the appellant’s actions alleged to have caused the first fall and his actions alleged to have caused the second. The evidence upon which his intent … and any perception of a need to defend himself … could be inferred was entirely distinct as between the two alleged occurrences. 86 With respect to the failure to give an extended unanimity direction, Fagan J said:79 It is difficult to conceive of a more serious error of this nature than one which resulted in the jury not having identified to them for their unanimous determination a factual question which was central to an element of the charge of murder and which the accused had put in issue. 87 While the Court of Criminal Appeal held that the Primary Judge erred in failing to direct the jury that it must be unanimous as to which actions on the part of the appellant caused the death of the deceased, the majority dismissed the appeal on the basis that no substantial miscarriage of justice had occurred. Meagher JA and Davies J held that the jury could not have been satisfied beyond reasonable doubt that the first action of the appellant caused the death, and it was not open to 79 Lane v The Queen [2017] NSWCCA 46 at [175]. -- 25 of 56 -- [2023] SASCA 109 Lovell JA 24 the jury to entertain a reasonable doubt of the appellant’s guilt of manslaughter by the evidence of the second interaction. 88 It was common ground in Lane that there were two discrete and separate acts which were said to have been deliberate and may have been a substantial cause of the victim’s death. That is, there were two actus rei: either actus reus could have been a substantial cause of the victims death. 89 The issue on appeal to the High Court was whether the Court of Criminal Appeal erred in concluding that no substantial miscarriage of justice actually occurred by reason of the failure of the Primary Judge to give the necessary extended unanimity direction.80 The plurality, with Gageler J agreeing, allowed the appeal because the proviso could not be applied to cure the uncertainty as to whether the jury's verdict was unanimous that resulted from the Primary Judge's failure to give the required direction.81 90 With respect to the question of whether an extended unanimity direction was required, the plurality agreed with the Court of Criminal Appeal:82 The appellant could not have been lawfully convicted by the jury unless it was agreed upon the action by the appellant that caused the deceased's fatal injury. In the absence of a unanimity direction, the basis of the verdict is necessarily uncertain as to the act or acts of the appellant on which it was founded. The CCTV footage did not depict blows by the appellant connecting with the head of the deceased before either fall. An assessment of the reliability of the eyewitnesses was necessary. Further, there were live issues as to the dangerousness of the appellant's acts and as to self-defence raised in respect of the acts of the appellant leading up to the second fall. As Fagan J recognised, the jury was not directed as to the different circumstances bearing upon these issues that were relevant in relation to each of the potentially fatal interactions between the appellant and the deceased. (citations omitted) 91 The uncertainty in the verdict arose because there was more than one actus reus. On the evidence there were two, either or both of which could have significantly contributed to the death of the victim. It was not simply the different location of the incidents which was determinative. Other authorities 92 R v Walsh was a case concerning conspiracy to defraud involving multiple misrepresentations.83 It was argued that the jury was not directed sufficiently on the need for unanimity because each count alleged more than one discrete act, that is, more than one discrete misrepresentation, by the accused. 93 After examining various authorities, Phillips and Buchanan JJA (Ormiston JA agreeing) observed that the question of unanimity arose where only 80 Lane v The Queen (2018) 265 CLR 196. 81 Lane v The Queen (2018) 265 CLR 196 at [3]-[4], [51] and [64]. 82 Lane v The Queen (2018) 265 CLR 196 at [45]. 83 (2002) 131 A Crim R 299. -- 26 of 56 -- [2023] SASCA 109 Lovell JA 25 one offence is charged and only one offence proved but the jury is presented with more than one route by which to determine guilt. They observed:84 It is worth recalling the standard direction to the jury that they must be agreed in the result but need not be agreed in the manner in which that result is arrived at. This may be, and commonly is, directed to variations in the evidence when the issues, in the sense of the facts to be proved, are specific and are not in doubt; for in determining those facts one juror may accept one witness and reject another, while another juror may do the opposite. But the principle is of wider application. Thus in R. v. Clarke and Johnstone, a murder/manslaughter case in which a number of different possibilities were relied upon by the Crown to establish guilt, the Court of Criminal Appeal said this:- "It is sufficient that the law established by universal practice in this Court permits a jury to reach a verdict in the way the trial Judge told the jury here. Homicide trials are a familiar example. The prosecution case of murder or manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way. The ordinary approach is consistent with the approach of this Court in Power [1960] V.R. 373, at p.374.” (emphasis added; citations omitted) 94 Phillips and Buchanan JJA (Ormiston JA agreeing) then addressed two of the more common situations in which the need for an extended unanimity direction may arise:85 To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on "unanimity" about one or other or more of those bases, at least if they do not "involve materially different issues or consequences". (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence". When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud. 84 R v Walsh (2002) 131 A Crim R 299 at [44]. 85 R v Walsh (2002) 131 A Crim R 299 at [57]. This statement of principle has been applied or cited with approval by the High Court and numerous intermediate courts of appeal. -- 27 of 56 -- [2023] SASCA 109 Lovell JA 26 (citations omitted) 95 The observations of the Court in Walsh have been cited with approval in many cases. In relation to this matter, I am dealing with the second situation postulated. Each discrete act, of itself, could prove the offence. That is, each act could be seen as an actus reus. 96 In Zandipour v R the Court (Warren CJ, Weinberg and Kaye JJA) adopted the principles enunciated in R v Walsh.86 The appellant was found guilty of murder. The appellant viciously attacked the victim in an incident lasting approximately six seconds. The appellant initially threw the victim violently to the ground and then kicked and stomped on his neck and head. During the incident, the victim suffered a lacerated vertebral artery which led to his death. The prosecution case at trial was that it was the kicks and stomps that caused the injury leading to death not the throw to the ground. The evidence of two forensic pathologists called at trial supported the proposition that it was the kicking and stomping that caused the lacerated vertebral artery but conceded that it was “possible” that the injury occurred due to the victim being thrown to the ground. The appellant submitted on appeal that, having regard to the medical evidence that the lacerated vertebral artery may have been caused by the “throw alone”, an extended unanimity direction was required as to the particular act that resulted in death. The Court held that:87 There is a line of authority to the effect that a jury dealing with a charge in an indictment that alleges fraud, and contains particulars of statements said to have been false or deceptive, must unanimously agree upon at least one particular as being fraudulent if there is to be a conviction. There cannot be a composite verdict whereby some members of the jury are satisfied that a particular representation was false, while others are satisfied only as to a different representation. The position is otherwise where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so. In such circumstances it is sufficient to establish the ingredient that any one of them is proved. Thus, in such cases, the jury must not simply be unanimous as to the fact that a false statement was made, but where more than one is averred, they must be unanimous about at least one of them. In this country, a similar approach appears to have been taken with regard to allegations of fraud. The point is best exemplified in R v Walsh, a case concerning conspiracy to defraud involving multiple misrepresentations. (citations omitted) 86 [2017] VSCA 179. 87 Zandipour v The Queen (2017) 53 VR 256 at [65]-[68]. -- 28 of 56 -- [2023] SASCA 109 Lovell JA 27 97 The Court, having discussed the cases of Magnus v The Queen,88 R v McCarthy,89 Meyers v The Queen,90 R v Klamo91 and Dookheea v The Queen92 stated: The review of the foregoing authorities reveals that, in cases such as this, the Court has applied the principles stated in Walsh. In particular, where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance. (emphasis added) 98 I agree, with respect, with the above summary of the principles. As with the other cases, the issue in Zandipour involved discrete acts, that is, the throwing to the ground and the kicking, both of which were potential causes of death. In this matter there was only one potential cause of death. 99 The Court in Zandipour considered, on the facts before them, that the appellant’s attack on the victim was one continuous episode and that it was entirely “artificial, and indeed almost unreal” to postulate a different state of mind on the part of the appellant within the one sequence of events. 100 In Fermanis v Western Australia the accused was charged with fraud arising from the sale of a hotel.93 Steytler P (Roberts-Smith and McLure JJA agreeing) said:94 … there is a plain distinction between a factual conclusion as regards the existence of an essential element of an offence, on the one hand, and factual conclusions as regards the evidence which is led for the purpose of proving that essential element, on the other. Jurors do not have to be unanimous in relation to the evidentiary route by which they make a finding with respect to an essential element of the offence. Next, it seems to me that the essential elements of an offence are not necessarily determined merely on the wording of the statute creating the offence. … There was consequently a number of routes by which that essential element of the offence could be established. In my opinion, these routes were not merely evidentiary. Rather, the fact to be found, namely the particular form of deceit or fraudulent means used, is an essential ingredient of the offence and the jury was required to be unanimous in finding that ingredient proved. Of course, that does not mean that they had to be unanimous in their acceptance of evidence which led to that finding. So, for example, each accused could not properly be convicted in circumstances in which the deceit or fraudulent means was found 88 (2013) 41 VR 612. 89 (2015) 124 SASR 190. 90 (1997) 147 ALR 440. 91 (2008) 18 VR 644. 92 [2016] VSCA 67. 93 (2007) 33 WAR 434. 94 Fermanis v Western Australia (2007) 33 WAR 434 at [68]-[69]. -- 29 of 56 -- [2023] SASCA 109 Lovell JA 28 by six of the jurors to be representation A, and by the other six to be representation B. They had to be unanimous in finding either or both of representations A and B proved. However, each might rely upon different evidence in finding that representation proved. 101 The reasoning of Steytler P that the jury do not have to be unanimous in relation to the evidentiary route by which they make a finding with respect to an essential element of the offence is an important one in the context of this matter. 102 In R v Klamo, the appellant had been convicted of the manslaughter of his four-week-old child by dangerous and unlawful act.95 The appellant admitted that he had shaken the child about a week before he died. The prosecution called a pathologist who concluded that the child’s death had been caused by a subdural haemorrhage which had occurred sometime in the 24 hours prior to death. That pathologist identified three possible causes of the haemorrhage: a spontaneous re- bleed; direct trauma; and indirect trauma, possibly by shaking. The prosecution case was that the relevant act was either a shaking of the child on the night of his death or, alternatively, the earlier admitted shaking had led eventually to the re- bleed. 103 The Primary Judge left to the jury two alternative pathways to guilt. The first was to convict the accused on the basis that he had caused death by shaking the baby on the night of his death. The alternative was to convict him of having caused the death of the baby by shaking him dangerously on the earlier occasion (about a week before) causing a subdural haemorrhage which spontaneously re-bled on the night of his death. 104 There was only one actus reus which caused death but there were two different causal mechanisms that may have led to death; contemporaneous shaking or an eventual re-bleed. Different considerations arose on causation depending on which act was proved. As the relevant acts were a week apart it could not be said that the acts were part of the one episode. 105 The Court of Appeal quashed the appellant’s conviction for manslaughter on the basis that the Primary Judge erred in failing to direct the jury that they must be unanimous as to which of the two alternative acts was the basis of their decision to convict. In the absence of such a direction, it was said to be entirely possible that there was no unanimity amongst the jurors as to which act founded the guilty verdict. Applying Walsh, Maxwell P (Vincent and Neave JJA agreeing) observed:96 Although the presentment charged only that the applicant had killed the child, the case against him was that he was guilty of manslaughter by dangerous and unlawful act. Proof of an act having both those characteristics was essential to conviction. The prosecution relied on — and the judge left to the jury — two ‘discrete acts’, some days apart, each of which was said to be capable of constituting the crime charged. On the authority of Walsh 95 (2008) 18 VR 644. 96 R v Klamo (2008) 18 VR 644 at [76]. -- 30 of 56 -- [2023] SASCA 109 Lovell JA 29 — and the cases on which the analysis was based — the jury could not convict unless they were ‘agreed upon that act which, in their opinion, does constitute’ the crime. 106 In Ribbon v The Queen, the Court held that the Primary Judge erred in failing to give an extended unanimity direction.97 With reference to the second category identified in R v Walsh,98 Doyle J, with Parker J agreeing, said:99 In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation. In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree. 107 With respect I agree and adopt Doyle JA’s remarks. Applicant’s submissions 108 The applicant submits that the purpose of an extended unanimity direction is to ensure that the jury, as a collective, have not disagreed about findings which are essential to the proof of the charged offence. An extended unanimity direction is not designed to remove all factual uncertainty in the evidence, nor in a verdict, but rather to ensure that the jury are truly agreed upon the essential elements in order to fulfil their duty. An extended unanimity direction is required where, absent such a direction, the basis of the verdict of guilty will necessarily be uncertain as to the essential act or acts of the accused. 109 The applicant submits that the central issue raised by Questions One and Two can be encapsulated in the following terms: when it is alleged that the accused performed a single act causing death but there is uncertainty about the precise point at which the act was committed (such that the particular circumstances surrounding the single actus reus cannot be particularised with precision), should the jury be 97 (2019) 134 SASR 328. 98 (2002) 131 A Crim R 299 at [57]. 99 Ribbon v The Queen (2019) 134 SASR 328 at [260]-[261]. -- 31 of 56 -- [2023] SASCA 109 Lovell JA 30 told that they must be unanimous about such a factual matter which is not essential to proof of an element because different factual scenarios are open on the evidence and different issues might arise for their consideration on one or other of those alternative factual scenarios? 110 On the prosecution case, the evidence allowed for the actus reus to have occurred at either one of two possible locations which were proximate to one another in both space and time. The prosecution presented its case on the basis that the evidence of the respondent’s actions at both locations formed part of a single body of evidence from which it could be concluded, beyond reasonable doubt, that he must have committed the actus reus. The applicant submits that there was never more than one discrete act as independently capable of proving an essential ingredient of the charged offence. The fact that there were two possible locations for the actus reus which were ‘distinct’ in a number of aspects was insignificant because the prosecution did not rely upon more than one act said to be independently sufficient to establish the relevant ingredient. The location and precise circumstances of the single actus reus were not facts essential in proof of any element. 111 The applicant drew attention to four significant matters: there was only one stab wound; the two alternate actions occurred within mere seconds of one another and only metres apart; the evidence supported the prosecution submission that only the respondent was armed with a knife and that his conduct, as a whole, revealed his determination to use the knife to stab the deceased; and the prosecution had not invited the jury to find proven that the single act occurred at a precise location and did not assert that proof of one of a number of identifiable actions at either location was alone sufficient to establish the actus reus. 112 The applicant submits that the jury did not need to decide the precise location of the fatal stabbing to be satisfied that the respondent committed the single act causing death. If the jury found proven that the deceased was deliberately stabbed by someone, and that the respondent was the only person who could have done so, that would have been sufficient for the first element. Properly framed, the essential question for the jury was whether they were unanimous that the prosecution had proven the respondent committed the single act of stabbing that resulted in death, not which physical interaction marked the occurrence of that act, or precisely where or when it took place. 113 The applicant submits that Lane and other cases in which courts have held an extended unanimity direction must be given are readily distinguishable and have no application where only one act can establish the essential element of the offence. In Lane, there were multiple acts open on the evidence relied upon by the prosecution and, importantly, more than one act which could have been a substantial cause of death. In the present case, there was only one possible actus reus which could sustain a conviction, that is, have been a substantial cause of death. Unlike Lane, the prosecution did not leave two separate criminal acts to the jury, inviting them to convict on one, the other, or a combination of both. The jury -- 32 of 56 -- [2023] SASCA 109 Lovell JA 31 did not have to consider which of a number of possible acts resulted in death. The prosecution left a solitary act, and simply pointed to the evidence which demonstrated the single stabbing could have been inflicted at one of two possible locations. Respondent’s submissions 114 The respondent submits that the prosecution case was that the respondent committed two similar acts – two stabbing movements with the hand while holding a knife. Only one of those two acts caused the stab wound and was the actus reus. The questions for the jury were who committed the actus reus and, if it was the respondent, what did he intend when he did that, and did he do it without lawful justification or excuse. Each of those questions involved materially different issues depending on whether the actus reus occurred on the driveway or the roadway. The respondent submitted that the two possible locations for the actus reus were mutually exclusive and mutually destructive because only a single act was relied upon as the cause of death. 115 The respondent accepts that in Lane, both of the two alleged acts of the accused were capable of having substantially caused death, whereas in the present case, only one of the two alleged acts by the respondent was capable of having caused death. The respondent submits that such a distinction does not affect whether an extended unanimity direction was required in the present case. The respondent submits that it is incorrect to suggest that it is only where discrete acts are themselves capable of proving an essential ingredient of the offence that a jury must be directed that they cannot convict unless they are unanimously agreed upon the act which constitutes the essential ingredient. Discussion 116 To return a verdict of guilty, the members of the jury must be unanimous in their conclusion that each of the material ingredients of the offences charged, as alleged by the prosecution, had been proved beyond reasonable doubt. However, as Doyle J observed in Ribbon,100 adopting in general Peek J’s analysis in both Ribbon and R v McCarthy, whether an unanimity direction is required is a question of fact and degree. But there is a practical difficulty in answering that question in an individual case. A trial judge, when considering whether an extended unanimity direction is required, must identify the legal elements of the offence charged. However, it is not just the legal elements that a trial judge must consider; the actual issues which are pre-requisites to a guilty verdict in the particular circumstances of the individual case are relevant. The practical difficulty in the present case is the potential for different defences to arise depending on where the stabbing took place. 117 Both at trial and on appeal it was common ground that: 100 Ribbon v The Queen (2019) 134 SASR 328 at [261]. -- 33 of 56 -- [2023] SASCA 109 Lovell JA 32 • there was a single stab wound that caused the fatal injury; • the prosecution could not establish beyond a reasonable doubt whether the fatal stab wound was inflicted in the driveway or the roadway; and • different defences potentially arose depending on the location where the fatal stab wound was inflicted. 118 On the prosecution case, the singular actus reus giving rise to the singular stab wound occurred because of an act of the respondent on the driveway (point A) and was captured by CCTV or occurred because of an act of the respondent on the roadway (point B) and was not captured by CCTV. While the alleged incident on the driveway and the alleged incident on the roadway were only separated by a few seconds and a few metres, in ruling that an extended unanimity direction should be given to the jury, the Primary Judge referred to the distinctions in the source of the evidence and available defences at each of the two possible locations. With respect to point A, the defence at trial submitted that the CCTV footage made clear that the deceased suffered no stab wound but if he did, the respondent had lawful justification because he was entitled to defend his partner and his property. With respect to point B, the defence at trial submitted that the prosecution had not excluded that Mr Newchurch stabbed the deceased, or if the respondent stabbed the deceased, the prosecution had not proven that he had the requisite intention or did not have lawful justification arising from a desire to defend his family and his property. 119 Like Lane, there was different evidentiary support for the events on the driveway and the roadway. Similarly, different issues and, more specifically, different defence considerations arose depending on where the actus reus occurred, either on the driveway or the roadway. However, the present case can be distinguished from Lane. In Lane the prosecution relied upon two possible actus rei, while in the present case the prosecution only relied upon one actus reus which may have occurred in one of two possible locations. That is, in Lane there were two acts either or both combined could have been a substantial cause of death. I do not consider that the admittedly separate and distinct acts that occurred in this matter can both be described as actus rei. Here there is only one actus reus. The other attempted stabbing, if that is how it can be described, was ineffective. 120 Here there was only one allegedly criminal act left to the jury. There was an act of swinging the knife and stabbing the deceased or an act of swinging the knife and missing the deceased. One of those acts occurred on the driveway and the other occurred on the roadway. As the authorities make clear, an extended unanimity direction will be required where each of the discrete acts are themselves independently capable of proving an essential ingredient of the charged offence unless the incident can be described as one episode. In the context of murder and manslaughter cases the actus reus is inextricably linked to causation. 121 As discussed, it is necessary to consider the elements of murder. -- 34 of 56 -- [2023] SASCA 109 Lovell JA 33 122 To find the accused guilty of murder the jury had to unanimously find that: 1. the accused committed an act or acts that were voluntary, conscious and deliberate; 2. the act or acts proved to have been committed by the accused caused the death of the deceased; 3. at the time the accused committed the act or acts which caused the death of the deceased, the accused had a specific intention either to kill the deceased or to cause the deceased grievous, that is, really serious, bodily harm; and 4. the act or acts which caused the death of the deceased were unlawful. 123 Turning to the first element, the jury had to decide, after considering the evidence, whether the accused stabbed the victim and, having found it was the accused, whether the act of stabbing was voluntary, conscious and deliberate. It was open on the evidence for the jury to be unanimous in relation to this first element despite not agreeing on whether the wound was inflicted in the driveway or the roadway. Indeed, it would be open to members of the jury to be uncertain as to where the stabbing occurred; that is, either on the driveway or road but being certain it was one of those two locations. The uncertainty of the location of the actus reus enlivened different evidential pathways to prove the relevant essential ingredient, namely, that it was the respondent who swung the knife and stabbed the deceased. The decision for the jury was did the accused stab the victim (assuming it was a conscious and voluntary act). The choice for the jury was not a choice between two separate actus rei that had different causation issues attached. The choice for the jury was whether, when committing the actus reus, did the accused stab the victim at point A or point B. That is, for the first element, the jury only had to be unanimous that it was the respondent who swung the knife and stabbed the deceased at either of the two possible locations. The choice between the driveway or the roadway were different evidential pathways to a unanimous verdict on the first element. The uncertainty in relation to whether the actus reus occurred at point A or B raises issues about proof of intent and whether the accused had a lawful excuse but raising those issues does not detract from the position that whether the actus reus occurred at point A or point B was a choice between evidential pathways leading to unanimity on the first element. 124 The second element was not in dispute. The stab wound was fatal. 125 In relation to the third element the jury had to be unanimous that, at the time of the infliction of the fatal wound, the accused had a specific intention either to kill the deceased or to cause the deceased grievous, that is, really serious, bodily harm. 126 I accept that careful and clear directions would be required to ensure the jury understood that they must be unanimous in relation to this element. Several possibilities arise. Some jurors may consider the stabbing occurred at point A. -- 35 of 56 -- [2023] SASCA 109 Lovell JA 34 Some may consider it occurred at point B. It is certainly possible that some jurors may not be satisfied as to which of those two points the stabbing occurred but be satisfied it was one or the other but nowhere else. 127 The jury would have to consider the question of the accused’s intent at point A if that is where they were satisfied it occurred (or some of them), or point B if that is where they were satisfied it occurred (or some of them). If they were satisfied it occurred at either point A or point B but could not say which one they would have to consider the accused’s intent at both points. What is required is unanimity on the issue of intent having considered the various evidential pathways described. 128 In relation to the fourth element, it was common ground that depending upon where the fatal wound was inflicted different defences potentially arose. Such a situation is, however, not unusual. Often in murder trials self-defence, defence of another and defence of property can all arise depending on the facts found (or not found) by the jury. That the jury may have adopted a different evidential pathway to this element causes no difficulty. What is important is that the jury must be unanimous, if returning a guilty verdict, that the prosecution has proved beyond a reasonable doubt that the accused’s act was unlawful. That is, the prosecution must exclude as a reasonable possibility all potential defences. The jury must be unanimous in finding that the infliction of the fatal wound was unlawful whether it occurred in the driveway or the roadway. 129 Like the third element, I accept that careful and clear directions would be required to ensure the jury understood that they must be unanimous in relation to this element. As with the third element, some jurors may consider it proved that the stabbing occurred at point A and some may consider it occurred at point B. It is certainly possible that some jurors may not be satisfied as to which of those two points the stabbing occurred but be satisfied it was one or the other but nowhere else. 130 The jury would have to be directed that all defences, whether the act occurred at point A or point B, must be excluded by the prosecution as a reasonable possibility. Those jurors who were satisfied the stabbing occurred at point A will have, by that decision, excluded the defences arising at point B. Those jurors who were satisfied that the stabbing occurred at point B will have excluded, by that decision, those defences arising at point A. Jurors who are unable to say whether it occurred at point A or B would have to consider all defences both at point A and at point B. 131 To return to the remarks of Doyle J,101 while there are some general principles that can be drawn from the authorities, the principles do not have sharp and clear edges. Much depends upon the way the prosecution case is formulated and 101 Ribbon v The Queen (2019) 134 SASR 328. -- 36 of 56 -- [2023] SASCA 109 Lovell JA 35 conducted, and the nature of the acts relied upon and the issues to which they give rise. 132 I accept that the issue of whether an extended unanimity direction is required is not simply answered by isolating the issue to there being only one actus reus. As Doyle J observed in Ribbon, a court when considering whether an extended unanimity direction is required, should have regard to a number of matters. No one factor is determinative.102 133 The fact that the prosecution rely on only one actus reus is a significant factor suggesting there is no requirement for an extended unanimity direction. Often where there is only one actus reus the conduct of the accused, whatever it may be, is likely to have occurred in one episode of violence. Where there is “one episode” of violence, an extended unanimity direction will generally not be required. Other factors are relevant and the obvious complicating feature here is the geographical location of the actus reus and its relevance to the third and fourth elements of murder. However, I do not consider that the directions required to address the issues in relation to elements three and four would involve any prejudice to the accused. 134 Having regard to the factors mentioned by Doyle J in Ribbon, in my view, despite careful directions being required in relation to the third and fourth elements of murder, an extended unanimity direction was not required. In my view, the discrete acts led in this matter were directed towards facts supporting the finding of the first essential ingredient; that is, the facts to be found were an evidential pathway to a determination of the first essential ingredient of murder or manslaughter. 135 To test that proposition, assume appropriate directions as discussed, were given to the jury. If the jury returned a verdict of guilty in those circumstances, the accused could not complain that there was any relevant uncertainty in the verdict. His complaint would be limited to saying that, although the prosecution had proved beyond a reasonable doubt he deliberately, consciously and voluntarily stabbed the victim, with either an intent to kill or cause grievous bodily harm, that the stab wound caused the victims death and that at the time he stabbed the victim he did not have a lawful excuse, there was uncertainty about the jury verdict because the jury may not have been unanimous about whether the stabbing occurred at point A or point B. The law has always tolerated some uncertainty. For example, in some cases of murder and manslaughter no body is found, and a precise cause of death cannot be determined. Or, even if a body is located its state of decomposition means no cause of death can be established. In such cases, the precise geographical location of any actus reus self evidently cannot be determined. To the extent that any uncertainty arises in this case, it is uncertainty that the law is prepared to tolerate. 102 Ribbon v The Queen (2019) 134 SASR 328. -- 37 of 56 -- [2023] SASCA 109 Lovell JA 36 136 On the facts of this case, I do not consider a unanimity direction was required. 137 My answer to Question One is no. 138 Question Two differs slightly from Question One because a verdict of guilty of the offence of manslaughter can be returned by statutorily prescribed majority after four hours of deliberation.103 It should be noted that where an extended unanimity direction is given to the jury on a charge of manslaughter, after four hours any extended agreement as to the first element of the offence would only need to be agreement of the statutorily prescribed majority.104 Subject to that qualification the same reasoning applies. 139 My answer to Question Two is no. Question Three 140 Question Three asks whether it was consistent with the prosecution duty to conduct the case fairly to make the following adjustment after the close of the evidence because of the Primary Judge’s decision to give an extended unanimity direction: 1. To open the prosecution case alleging that there were two alternative locations at which the act causing death might have occurred. 2. To close the prosecution case alleging that one of the two alternative locations was reasonably possible, and the other was highly unlikely. 141 Question Three does not raise an issue appropriate for consideration.105 Any answer that could be provided would be specific to the facts of the present case and would have little utility in future cases. In any event, it is not relevant given my answers to Questions One and Two as a unanimity direction was not required. I therefore decline to answer Question Three. Conclusion 142 I would answer the questions arising in the course of the trial as follows: 1. No. 2. No. 3. Not answered. 103 Juries Act 1927 (SA) s 57. 104 R v McCarthy (2015) 124 SASR 190 at [5]. 105 Rapson v WorkCover Corporation (2007) 98 SASR 86 at [10]-[17]. -- 38 of 56 -- [2023] SASCA 109 Doyle JA 37 143 DOYLE JA: The questions reserved for this Court’s consideration, and the circumstances in which those questions fall to be answered, have been set out in the reasons of Lovell JA. 144 I agree with Lovell JA’s reasons for rejecting the respondent’s submission to the effect that the questions should not be answered because the case stated does not contain any agreed statement of facts. When the questions relate to the directions that ought to have been given at trial, there is no need for agreed facts in the usual sense. It is sufficient that the case stated identifies the circumstances at trial relevant to this Court’s determination of the questions reserved. The case stated in the present matter is sufficient for that purpose. 145 I would answer the questions reserved in the same way as Lovell JA, but propose to set out my own reasons. I propose to commence with some observations as to the principles governing extended unanimity directions in cases such as the present, before applying those principles to the present case. Principles governing extended unanimity 146 In cases where the evidence reveals more than one pathway to guilt, a question may arise as to whether the trial judge must direct the jury that they need to be unanimous not only as to the verdict, but also as to the route or pathway by which that verdict is reached. A direction to this effect is often referred to as an ‘extended unanimity direction’. 147 The authorities concerning when it may be necessary to give an extended unanimity direction tend to distinguish between two types of case where the issue has arisen. The first type of case, exemplified by cases concerning murder and manslaughter, arises where the prosecution advances alternative legal bases for guilt, but depending substantially upon the same facts. The second type of case arises where the prosecution advances alternative factual bases for liability; that is, where one offence is charged, but the prosecution relies upon more than one act as independently capable of proving an essential ingredient of the charged offence. The two types of cases give rise to different considerations when determining whether an extended unanimity direction is required. 148 It is the second type of case that is relevant in the present matter. The principles applicable to this type of case were summarised by Phillips and Buchanan JJA (Ormiston JA agreeing) in R v Walsh: 106 The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and 106 R v Walsh (2002) 131 A Crim R 299 (Walsh) at [57] (Phillips and Buchanan JJA, Ormiston JA agreeing). -- 39 of 56 -- [2023] SASCA 109 Doyle JA 38 the defence and what are the live issues at the conclusion of the evidence”. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud. 149 This passage from Walsh has been applied or cited with approval by numerous intermediate appellate courts.107 It was also cited with approval by the High Court in Lane v The Queen.108 150 In applying this statement of principle in Fermanis, Steytler P (Roberts-Smith and McLure JJA agreeing) emphasised the distinction between factual conclusions as to essential ingredients of an offence, and factual conclusions merely forming part of an evidential pathway to establishing an essential ingredient:109 … the jury must be unanimous on all essential elements or ingredients of an offence: … Also, it seems to me that there is a plain distinction between a factual conclusion as regards the existence of an essential element of an offence, on the one hand, and factual conclusions as regards the evidence which is led for the purpose of proving that essential element, on the other. Jurors do not have to be unanimous in relation to the evidentiary route by which they make a finding with respect to an essential element of the offence. Next, it seems to me that the essential elements of an offence are not necessarily determined merely on the wording of the statute creating the offence. That is to say, the fact that the statute requires, for example, that there be deceit or fraudulent means rather than any particular form of deceit or fraudulent means does not mean that it is not essential for the jury to agree upon the particular form of deceit or fraudulent means relied upon by the prosecutor. As Elias CJ put it in Mead (at [15]), in the extract quoted above, “The statutory elements will need to be anchored to the facts relied upon by the prosecution as the basis of liability”. Finally, it appears from the cases that it will be relevant, in deciding the extent to which unanimity is required in a case run by the State on alternative bases, how the charge against the accused is formulated. 151 In also applying this statement of principle, the Victorian Court of Appeal in Magnus emphasised that the issue is to be approached in a practical rather than technical manner, and involves consideration of not only the legal elements of the 107 Fermanis v Western Australia (2007) 33 WAR 434 at [61] (Fermanis) (Steytler P, Roberts-Smith and McLure JJA agreeing; R v Klamo (2008) 18 VR 644 (Klamo) at [75] (Maxwell P, Vincent and Neave JJA agreeing); Magnus v R (2013) 41 VR 612 (Magnus) at [32] (Buchanan, Ashley and Redlich JJA); Chapman v The Queen (2013) 232 A Crim R 500 at [28] (Adamson J, Hoeben CJ at CL and Davies J agreeing); Pratten v R [2014] NSWCCA 117 at [45]-[46] (Meagher JA, Fullerton and Hamill JJ); R v McCarthy (2015) 124 SASR 190 (McCarthy) at [117] (Gray J), [282] (Peek J); Lane v The Queen [2017] NSWCCA 46 (Lane) at [18] (Meagher JA and Davies J); Ribbon v the Queen (2019) 134 SASR 328 (Ribbon) at [65]; (Peek J, Parker agreeing), [258] (Doyle J, Parker J agreeing); Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 30 at [79] (Allsop CJ, Wigney and Abraham JJ); Sadler v The King [2023] SASCA 63 at [11]-[12] (Doyle JA, Bleby JA agreeing). 108 Lane v The Queen (2018) 265 CLR 196 at [45] (Kiefel CJ, Bell, Keane and Edelman JJ). 109 Fermanis at [68] (Steytler P, Roberts-Smith and McLure JJA agreeing). -- 40 of 56 -- [2023] SASCA 109 Doyle JA 39 offence, but the way in which the prosecution and defence put their cases, and the live issues at the conclusion of the evidence:110 What elements in the particular case are essential to criminal liability and thus require unanimity is, as Elias CJ observed in R v Mead ‘a practical question not a technical one’. The essential points upon which the jury must agree extend beyond the statutory elements. What must be agreed turns not only upon the legal elements of the offence but also upon the factual elements essential to the case advanced for the prosecution and defence. Not only must there be unanimity as to the actus reus of the offence, but the elements must be ‘anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence. Without such agreement there is no common foundation for the verdict.’ The jury verdict will not be acceptable if ‘based upon quite disparate findings relating to the very foundations upon which the verdict rests’. Particulars contained in a charge ensure that an accused is given notice of the case against him. They are likely to assist in identifying essential ingredients of the case upon which jury unanimity will be required. Where there are multiple particulars, each of which may be sufficient to sustain the charge, and where the evidence leaves open the possibility of a finding that only one or some of the particulars have been established, a direction as to the need for unanimity will be required. This principle, when applied in the case of fraud charges with multiple particulars, any of which could sustain a guilty verdict, would require a unanimous finding as to the particular deceit practised. 152 In Ribbon, I addressed the distinction between cases in which more than one act is relied upon as an essential ingredient of the offence charged (thus requiring an extended unanimity direction), and cases in which more than one act is relied upon merely as an alternative evidential pathway to establishing the one essential ingredient (not requiring an extended unanimity direction).111 I offered the following summary of the considerations that might be relevant in drawing this distinction:112 In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree. 153 Before turning to apply these principles to the present case, it is instructive to consider their application in some cases involving the charge of murder or manslaughter. I propose to do so by reference to four cases: Klamo, Zandipour, McCarthy and Lane. While each case turns largely on its own facts and forensic 110 Magnus at [46]-[47] (Buchanan, Ashley and Redlich JJA) (omitting citations). 111 Ribbon at [260] (Doyle J, Parker J agreeing). 112 Ribbon at [261] (Doyle J, Parker J agreeing). -- 41 of 56 -- [2023] SASCA 109 Doyle JA 40 circumstances, they are a useful combination of cases to consider. The first two cases involve relatively clear illustrations of the principles, with Klamo involving two quite similar but temporally remote acts which did require an extended unanimity direction, and Zandipour involving two quite different acts that occurred close in time, and within the one altercation, which did not require an extended unanimity direction. The third and fourth cases involve more controversial illustrations of the principles, with McCarthy involving two quite different factual bases for liability which did not require an extended unanimity direction, and Lane involving two acts which occurred close in time, and within the one altercation, but which nevertheless required an extended unanimity direction. 154 In Klamo, the defendant was convicted of unlawful and dangerous act manslaughter by reason of having shaken his four-week-old son prior to his death, and the baby suffering a fatal brain haemorrhage. The defendant admitted that he had shaken his baby a week before he died. The prosecution case was that the relevant act was the (disputed) shaking of the baby on the night of his death or, alternatively, the (admitted) shaking of the baby a week earlier. The pathologist called by the prosecution gave evidence that it was a real possibility that the haemorrhage was a result of a shaking event. The defendant appealed his conviction on the basis, inter alia, that the trial judge erred in failing to direct the jury that they had to be unanimous as to which of the two alternative factual bases was the basis for the conviction. 155 In upholding this ground of appeal, Maxwell P (Vincent and Neave JJA agreeing) applied the statement of principle in Walsh to which I have referred. Having observed that the prosecution presented the jury with two alternative paths to conviction, Maxwell P said:113 In my opinion, the present case is clearly of the second type. Although the presentment charged only that the applicant had killed the child, the case against him was that he was guilty of manslaughter by dangerous and unlawful act. Proof of an act having both those characteristics was essential to conviction. The prosecution relied on — and the judge left to the jury — two “discrete acts”, some days apart, each of which was said to be capable of constituting the crime charged. On the authority of Walsh — and the cases on which the analysis was based—the jury could not convict unless they were “agreed upon that act which, in their opinion, does constitute” the crime. 156 The defendant in Zandipour was convicted of murder. There was evidence that the cause of the deceased’s death was a lacerated artery as a result of force to the left side of his neck. The prosecution case was that the defendant inflicted this injury upon the deceased during an attack upon him lasting about six seconds. The issue of extended unanimity arose because, on one view, which the defence case emphasised, there were two phases to the attack or altercation: the first involving the defendant throwing the deceased to the ground, and the second involving the defendant kicking, and stomping on, the deceased. While the focus of the 113 Klamo at [76] (Maxwell P, Vincent and Neave JJA agreeing). -- 42 of 56 -- [2023] SASCA 109 Doyle JA 41 prosecution case was its allegation that the kicking and stomping caused the fatal neck injury, it left open as an alternative pathway to guilt that the defendant throwing the deceased to the ground resulted in him landing in a manner that caused his neck injury and death. The defendant appealed his conviction on grounds that included a complaint that the trial judge failed to give an extended unanimity direction. 157 The Court (Warren CJ, Weinberg and Kaye JJA) held that the outcome of the appeal on this ground was governed by the principles in Walsh:114 The review of the foregoing authorities reveals that, in cases such as this, the Court has applied the principles stated in Walsh. In particular, where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance. 158 After reminding themselves of the need to take a practical rather than technical approach, the Court rejected the defendant’s argument:115 The CCTV footage in the present case shows that the entire incident, from the commencement of the throw to the delivery of the kicks and stomp, occupied no more than about six seconds. The applicant’s submission that a unanimity direction was required proceeds upon the assumption that, whereas there may have been no murderous intent at the time of the throw, and/or a viable defence of self-defence at that precise moment, murderous intent somehow surfaced in the one or two seconds from the moment Hardy hit the ground, and the delivery of at least the first of the kicks. Alternatively, whereas self- defence might be viable with regard to the throw, it may have been negated when the kicks were delivered. In that context, the evidence of the witnesses, and the footage on the CCTV, clearly indicates that the whole assault was one continuous episode, with no significant breaks in time. The kicks to the neck, and the stomp on the head, followed immediately upon the slamming to the ground. It is entirely artificial, and indeed almost unreal, to postulate a different state of mind on the part of the applicant within the one sequence of events. In our opinion, the scenario upon which that submission rests borders on the fanciful. There was simply no evidential foundation for it. The applicant’s defence throughout the trial, at least as to its first limb, was lack of murderous intent from beginning to end. As for self- defence, this seems to us to have rested upon the slimmest of possible foundations, whether with regard to the throw, or the kicks and stomps. In truth, self-defence barely featured as a serious answer to the charge that was brought. The extraordinary viciousness of the attack upon the deceased, from the moment of the throw through to the stomp to the head, makes it inconceivable that the jury could realistically have entertained self-defence as an answer to what the applicant did. If ever there was a case where it can be said that the offending was part of one continuous sequence, not calling for an artificial deconstruction of the acts going to make up the cause of death, it is this case. What the applicant did to the deceased was done in one series of 114 Zandipour at [84] (Warren CJ, Weinberg and Kaye JJA). 115 Zandipour at [86]-[91] (Warren CJ, Weinberg and Kaye JJA). -- 43 of 56 -- [2023] SASCA 109 Doyle JA 42 continuous movements. It is, in that sense, even stronger a case against a unanimity direction than McCarthy, to which we have earlier referred. In any event, the judge’s charge, in its final form, made it clear to the jury that if they entertained any reasonable doubt about whether the injury had been caused by what her Honour described as the ‘kicking phase of the attack’, if they thought it was a reasonable possibility that the throw to the ground might have caused the injury, or if they simply could not determine which act caused the injury, they could not find the accused guilty of murder unless ‘satisfied beyond reasonable doubt that the murderous intent and the lack of belief in the need for self-defence have been proven to have existed throughout the episode’. As a matter of logic, that direction ensured that the jury could not have come to a composite verdict of a kind where there had not been unanimity as to both the cause of death, and the existence of murderous intent at the time the fatal injury was inflicted. 159 Turning to McCarthy, the issue of relevance to the present matter was whether the prosecution case that the defendant had inflicted a number of forceful blows upon the deceased (described as ‘the striking case’), followed shortly afterwards by a final act of asphyxiation of the deceased (described as ‘the asphyxiation case’), required an extended unanimity direction. The Court (Gray and Peek JJ, Kourakis CJ not deciding the issue) concluded that it did not. In so holding, their Honours emphasised both that the acts the subject of the two cases were separated in time by only minutes and in space by only metres; and that they were not inconsistent or ‘mutually destructive’ of one another as the cause of death (because the evidence allowed for both to have caused the deceased’s death). 160 In his reasons, Peek J undertook a detailed historical analysis of what he described as ‘the rise of extended jury unanimity’. 161 In addressing instances of alternative factual bases for liability, his Honour commenced by referring to the facts in Royall v The Queen,116 in which there were three alternative factual pathways to guilt and yet no suggestion of any need for extended unanimity.117 162 His Honour next referred to the statements of principle in Walsh,118 before addressing the decision of the New South Wales Court of Criminal Appeal in The Queen v PL.119 Peek J described that decision as acknowledging the advent of extended jury unanimity, but proceeding on the basis that the doctrine had no application to cases such as Royall. As in Royall, the deceased (the husband of the defendant) in PL died when home alone with the defendant in circumstances where death was not by natural causes, but could be explained in a number of different ways. The evidence revealed several different potential mechanisms of injury, each of which individually or in combination might have caused the victim’s death. Again, as in Royall, it was held that in the circumstances of that case, it was 116 Royall v The Queen (1991) 172 CLR 378 (Royall). 117 McCarthy at [277]-[278] (Peek J). 118 McCarthy at [279]-[283] (Peek J). 119 The Queen v PL (2009) 261 ALR 365 (PL). -- 44 of 56 -- [2023] SASCA 109 Doyle JA 43 unnecessary for the prosecution to establish the precise cause of death, provided that it was proved that the defendant caused the death with the requisite mens rea. In explaining why that was sufficient in the circumstances of PL, Spigelman CJ relied upon the following passage from Brennan J’s reasons in Royall (emphasising that the defendant engaged in “a course of violent conduct”):120 In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done. But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s 18(1)(a). 163 Peek J next analysed the decision in Klamo before observing that, while conceptually relevant, the case his Honour had to consider was closer to Royall and PL.121 164 As Peek J explained, the prosecution case at trial in McCarthy was that there was a single continuous process of assault by the defendant upon the deceased, consisting of the striking case and followed shortly thereafter with the asphyxiation case.122 His Honour said that whether extended jury unanimity was required depended largely upon the relationship between the striking case and the asphyxiation case.123 In holding that extended jury unanimity was not required, his Honour relied upon several features of the case:124 the end of the striking case and the act of asphyxiation were separated in time by only a few minutes; the applications of force in the striking case and asphyxiation case all occurred within a few metres of each other, in the close confines of a garage; the striking and asphyxiation cases were not mutually exclusive as causes of the deceased’s death because the evidence was to the effect that both may have been an operative substantial cause of death; there was a case to answer in respect of both the alternative cases; the prosecution case did not suffer from a vice of mutually inconsistent and destructive factual scenarios;125 and there was no prejudice to the defendant because the alternatives in the prosecution case (convictions based upon the striking case, the asphyxiation case or both) had always been made clear. 165 Gray J reasoned similarly, and to the same conclusion. His Honour said that, properly understood, the prosecution presented a case of a continuous assault resulting in the death of the deceased. There was no inconsistency between the 120 Royall at 404-405 (Brennan J); PL at [49] (Spigelman CJ). 121 McCarthy at [299] (Peek J). 122 McCarthy at [304] (Peek J). 123 McCarthy at [306] (Peek J). 124 McCarthy at [315]-[322] (Peek J). 125 McCarthy [313], [321] (Peek J). His Honour reasoned that rejection of the evidence (from an accomplice) as to the asphyxiation case did not destroy the striking case; and rejection of the striking case (for example, on grounds of self-defence) did not destroy the asphyxiation case. -- 45 of 56 -- [2023] SASCA 109 Doyle JA 44 alternatives encompassed within that case because both the striking and asphyxiation could have been substantial causes of death.126 166 After referring to the statements of principle in Walsh, and its application in Klamo, Gray J acknowledged that McCarthy fell within the second category of case in Walsh. However, in his view, the various discrete acts relied upon were properly characterised as an ongoing course of conduct.127 His Honour added that to the extent that mutually destructive alternatives might require extended unanimity, that was not a difficulty in McCarthy because none of the evidence led in support of either the striking case or the asphyxiation case, if accepted, tended to destroy the case on the other alternative.128 167 Gray J concluded his reasoning on this topic with the following observations:129 The relevant essential element or ingredient to the charge of murder is that the defendant applied force unlawfully to the deceased. Accordingly, in my view, the jury only need be in unanimous agreement that it was an act of the defendant in the course of the assault on the deceased that was the substantial cause of death. The prosecution has never been required to elect which particular injury or instance of force in a continuous assault resulted in death.130 To require them to do so would defy logic. Unlike other offences, a person can only be charged with a single count of murder against the one victim. The prosecution may bring a charge alleging that a person was either a principal or an accessory to that murder. It was necessary for the judge to split the prosecution case as the jury was required to consider whether the defence of self defence arose in respect of part, or all, of the course of conduct and whether it arose specifically in respect of any proved substantial cause of death. … An assault may commence as self defence but, over time, turn to be disproportionate to the original threat. In such a case, a jury may find that section 15 of the Criminal Law Consolidation Act operates as either a full defence or a partial defence depending on which acts in the assault are proved beyond reasonable doubt. For example, if the jury found both the striking and the asphyxiation proved beyond reasonable doubt, and found that both were a substantial cause of death, it would be open for the jury to find that the striking was in proportion to the threat but that the asphyxiation was not. 168 Kourakis CJ agreed with Peek J’s reasons for allowing the appeal on the grounds other than the one concerning jury unanimity. As to the issue of jury unanimity, Kourakis CJ acknowledged Peek J’s analysis of the authorities, but observed that, in his view, consideration of whether the alternative pathways were mutually destructive was the touchstone:131 It is the cardinal principle of Australian criminal law that a charged offence must be proved to the satisfaction beyond reasonable doubt of the tribunal of fact. In my respectful opinion, the test which is most consistent with that principle is to ask — are the alternative bases mutually destructive? The extended jury unanimity issue arises because juries are multi- 126 McCarthy at [114]-[115] (Gray J). 127 McCarthy at [121] (Gray J). 128 McCarthy at [121] (Gray J). 129 McCarthy at [122]-[123] (Gray J). 130 See e.g. Royall v The Queen (1990) 172 CLR 378, 404-405; The Queen v PL (2009) 261 ALR 365, 211. 131 McCarthy at [5] (Kourakis CJ). -- 46 of 56 -- [2023] SASCA 109 Doyle JA 45 member tribunals of fact. The principle of logic which has spawned the concept of extended jury unanimity is essentially that a jury, as an institution, cannot be satisfied of guilt beyond reasonable doubt if some of its members, or some of the statutorily prescribed majority of its members, find the offence proved on a factual basis which precludes them from assenting to a verdict on the factual basis found by the remaining members of the jury. 169 His Honour said that application of the principles set out in the authorities to the facts in McCarthy was problematic, and that it was not necessary for him to reach a concluded view because there must be a retrial for other reasons. His Honour added that “[o]n that retrial whether or not it will be necessary to give an extended unanimity direction will depend on the way the prosecution and defence cases are presented and on the real forensic issues which arise.”132 170 In Lane, the appellant was charged with murder, but convicted of manslaughter. Manslaughter had been left to the jury on two bases: excessive self- defence and unlawful and dangerous act manslaughter. The prosecution case was that the appellant killed the deceased during an altercation that occurred on a footpath and roadway, not far from the hotel where they had been drinking. 171 The altercation was captured by a CCTV security camera. The CCTV footage showed the deceased fall to the ground and strike his head on the roadway on two occasions, the second happening about 10 seconds after the first. Between the two falls, the appellant was seen to strike the deceased’s companion, giving the deceased time to rise to his feet and face the appellant, before he fell to the ground the second time. 172 By the conclusion of the trial it was accepted that the deceased suffered a significant brain injury in each of the falls, and that the injury sustained by the deceased in each fall was separately sufficient to cause his death. He lost consciousness following the second fall, and died in hospital nine days later. 173 In the prosecution opening, the first fall was described to the jury as caused by contact between the appellant and the deceased which “perhaps [caused] the deceased to trip and fall” on the roadway. The second fall was described as being the result of the appellant swinging a “round house type left hook impacting with the deceased’s face to the right hand side”. Five witnesses gave evidence of having seen or heard aspects of this second incident. 174 The appellant did not give evidence. His case was that the jury could not be satisfied that either fall was caused by a voluntary act on his part. As to the first incident or fall, the CCTV footage was said to show only the deceased stumbling backwards and falling. As to the second, the CCTV footage was said to not show any clear movement consistent with his having thrown a punch, and the reliability of the oral evidence was challenged. It was also the defence case that on each occasion the jury was entitled to consider that he was engaged in self-defence. 132 McCarthy at [10] (Kourakis CJ). -- 47 of 56 -- [2023] SASCA 109 Doyle JA 46 175 The prosecution closed its case on the basis that the actions of the appellant before each fall could found his liability for murder or manslaughter. It was submitted that the jury could conclude from the CCTV footage that there was a “blow” from the appellant prior to the first fall; and from the CCTV footage and oral evidence, that the appellant landed a punch that caused the deceased to fall the second time. The trial judge directed the jury that it was open to it to find that a deliberate act by the appellant had caused the death of the deceased if it found that either fall was caused by the appellant. 176 The appellant appealed on grounds that included a complaint that the trial judge erred in failing to give an extended unanimity direction. The Court (Meagher JA, Davies and Fagan JJ) unanimously upheld this complaint. 177 Meagher JA and Davies J commenced their analysis by referring to the statement of principle in Walsh, and its approval in several subsequent intermediate appellate decisions.133 Their Honours contrasted the appellant’s submissions (by reference to Klamo) to the effect that precision and unanimity were required when identifying the voluntary act relied upon as causing death, with the respondent’s submissions to the effect that this was not required when the two acts relied upon were voluntary acts capable of constituting murder or manslaughter and occurred in the course of an assault where either or both could have been the cause of death.134 Their Honours acknowledged that it was not always necessary to prove the precise act causing death in order to establish murder or manslaughter. Referring to Royall and PL, their Honours held that it will not be necessary to prove which act caused death provided that the jury may be satisfied that each of the two or more acts relied upon is a sufficient act to establish murder or manslaughter. In other words, in such a case, the Crown has to establish that each of the acts, which in combination or separately caused death, was also accompanied by the requisite intention.135 Their Honours reasoned that the present case was different because there was an issue as to whether either of the falls was caused by a voluntary act of the appellant, and also an issue as to whether the elements of the offences of murder or manslaughter were established with respect to any such act.136 178 Meagher JA and Davies J described the various issues that arose on the prosecution case, and the evidence, as to each of the two acts (that is, what came to be referred to as ‘the blow’ prior to the first fall and ‘the punch’ prior to the second fall). There were issues as to whether either act was proved, and as to whether, if proved, they occurred in self-defence.137 In concluding that the trial 133 Lane at [18]-[19]. 134 Lane at [24]-[25]. 135 Lane at [26]-[27]. 136 Lane at [28]. 137 Lane at [29]-[40], noting (at [30]) that the issue of self-defence did not involve a focus on the immediate circumstances of either alleged act, but rather upon the overall sequence of events as showing that the appellant was the instigator and aggressor. -- 48 of 56 -- [2023] SASCA 109 Doyle JA 47 judge ought to have given an extended unanimity direction, their Honours reasoned:138 Three things follow. The first is that on the Crown case as left to the jury there were two discrete acts which were said to have been deliberate and to have caused death. Each may have been sufficient to establish murder or manslaughter and accordingly was an alternative factual basis of liability. The second is that in such circumstances the jury could not convict of murder or manslaughter unless they were agreed as to whether one or both of those acts was a criminal act of the appellant. Finally, in the absence of any direction to that effect it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant’s voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall. That possibility was not excluded by the trial judge’s general direction as to unanimity (see [34] above) which accommodates only the circumstance that the same facts may support alternative legal bases of guilt. To remove that possibility the jury should have been directed that they could not convict unless they were agreed as to the voluntary act which resulted in their being satisfied that there should be a verdict of guilty of murder or not guilty of murder but guilty of manslaughter. The trial judge erred in not giving such a direction ... 179 Fagan J, in separate reasons, also concluded that the trial judge erred in failing to give an extended unanimity direction. In so concluding, his Honour emphasised his view that the two actions relied upon in the prosecution case were not properly to be treated as part of one continuous assault:139 The evidence led by the Crown did not permit treatment of the two occasions on which the deceased fell and struck his head on the roadway as constituting a single incident comprised of multiple contacts by the appellant which need not be distinguished from each other. The alleged contact between the two men was not so continuous or unified as to allow the case to be presented and left the jury as one of a single, composite assault. It was necessary for the jury to discriminate between separable alleged blows or other actions and their respective consequences for the deceased. 180 After referring to both Walsh and Klamo, Fagan J rejected the attempt to distinguish the latter on the ground that the temporal separation between the acts in Klamo was some days, whereas in Lane it was only 10 seconds. In deciding that the two acts in Lane were to be treated separately, rather than as one continuous assault, Fagan J said:140 … . Importantly the two causative acts of the appellant which the Crown submitted for the jury’s consideration were distinct in three respects: (a) in character, the first not involving any discernible contact with the deceased, the second consisting in a hard punch; 138 Lane at [42]-[44]. 139 Lane at [111]. 140 Lane at [139]-[140] -- 49 of 56 -- [2023] SASCA 109 Doyle JA 48 (b) with respect to the source of the evidence which supported them and (c) in giving rise to two separate heavy contacts of the deceased’s head with the roadway. This case did not fall within the principle that “if an accused person kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish murder”, then it is “not necessary to found a conviction to prove which act caused the death”: Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705 at 710. As pointed out at [131] – [133] there were in the present case very significant live issues bearing upon whether there had occurred either of the two alleged acts of the appellant (that which caused the first fall and that which caused the second). Further, there were issues as to whether either, if proved, was “a sufficient act to establish murder”. Namely, the issues of whether any act which might be found proved had been accompanied by the requisite intent and whether, if so, it had been self-defensive. Those additional issues might well be resolved with different results as between the appellant’s actions alleged to have caused the first fall and his actions alleged to have caused the second. The evidence upon which his intent (issue (2)) and any perception of a need to defend himself (issue (3)) could be inferred was entirely distinct as between the two alleged occurrences. 181 Whilst the Court of Criminal Appeal in Lane was unanimous as to the need for an extended unanimity order, the majority (Meagher JA and Davies J) invoked the proviso and dismissed the appeal. Fagan J, in dissent, would have allowed the appeal. 182 The case went to the High Court. Whilst the High Court was only directly concerned with a challenge to the majority’s invocation of the proviso, their Honours appeared to endorse the majority’s conclusion that an extended unanimity direction ought to have been given, and indeed their Honours’ reliance upon the statement of principle in Walsh. As Kiefel CJ, Bell, Keane and Edelman JJ said:141 The appellant could not have been lawfully convicted by the jury unless it was agreed upon the action by the appellant that caused the deceased's fatal injury.142 In the absence of a unanimity direction, the basis of the verdict is necessarily uncertain as to the act or acts of the appellant on which it was founded. The CCTV footage did not depict blows by the appellant connecting with the head of the deceased before either fall. An assessment of the reliability of the eyewitnesses was necessary. Further, there were live issues as to the dangerousness of the appellant's acts and as to self-defence raised in respect of the acts of the appellant leading up to the second fall.143 As Fagan J recognised, the jury was not directed as to the different circumstances bearing upon these issues that were relevant in relation to each of the potentially fatal interactions between the appellant and the deceased.144 Application to the present case 183 The deceased died from a single stab wound to his back. 141 Lane v The Queen (2018) 265 CLR 196 at [45]; see also Gageler J at [57]. 142 Walsh (2002) 131 A Crim R 299 at 316-317 [57]; Fermanis v Western Australia (2007) 33 WAR 434 at 454 [68]-[69], 456 [73]; Chapman v The Queen (2013) 232 A Crim R 500 at 505 [28]. 143 Lane v The Queen [2017] NSWCCA 46 at [134]. 144 Lane v The Queen [2017] NSWCCA 46 at [135], [142]. -- 50 of 56 -- [2023] SASCA 109 Doyle JA 49 184 The prosecution case, and the evidence adduced at trial, left open two alternative pathways to guilt. The first, supported by CCTV evidence, was that the respondent stabbed the deceased during an altercation in the front garden and driveway of the respondent’s home. The second, supported by oral evidence, was that the respondent stabbed the deceased after the altercation had moved to the roadway out the front of the respondent’s home. Each of the ‘driveway stabbing’ and the ‘roadway stabbing’ was an act which, if established, was said to be independently sufficient to establish the actus reus of the charged offence of murder, or in the alternative, manslaughter. 185 Of course, it followed from the fact that there was only one stab wound that, while there may have been two ‘stabbing motions’, there was in fact only one causative or fatal stabbing (that is, only one stabbing that pierced the deceased’s back, causing him to die). But the prosecution case, and evidence, nevertheless encompassed two alternative acts (stabbing motions), and hence two alternative pathways to guilt that were left for the jury’s consideration. The case was thus one that called for consideration of the principles set out in Walsh, and the subsequent cases to which I have referred. 186 The issue for the trial judge, in determining whether an extended unanimity direction was required, was whether the two alternative pathways involved the allegation of two distinct actus rei, in which case extended unanimity was required; or whether they were merely different factual or evidentiary pathways to the one actus reus. 187 As explained by the authorities I have mentioned, particularly Royall and PL, not every conviction for murder requires certainty as to the precise detail of the act or acts constituting the actus reus. Underlying the issue of whether an extended unanimity direction is required is a judgment as to the degree of uncertainty that the law will tolerate in the verdict to be given in a particular case. In some cases it is sufficient and appropriate that the actus reus be identified in relatively general terms (such as that the accused struck, or in this case stabbed, the deceased), without any need for certainty (and hence unanimity) as to matters of detail arising on the evidence. In other cases, it is appropriate that that there be certainty, and hence unanimity, as to some of those matters of factual detail (such as the point in time or location at which the accused struck or stabbed the deceased). 188 The authorities demonstrate that the issue of whether an extended unanimity direction is required is not always a straightforward one. As I attempted to summarise in Ribbon, and at the risk of unnecessary repetition, the issue involves consideration of various indicia, and questions of degree:145 In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or 145 Ribbon at [261] (Doyle J, Parker J agreeing). -- 51 of 56 -- [2023] SASCA 109 Doyle JA 50 is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree. 189 The issue is not always one susceptible of analytical resolution. It involves an element of judgment on the part of the trial judge as to the level of certainty that is appropriate in respect of a particular case and verdict. 190 The starting point in the present case is that the two acts relied upon by the prosecution as the alternative pathways to guilt were not only of the same nature (that is, two stabbings or stabbing motions), but also relatively proximate in time and location. The evidence suggested that the two acts were separated in time by about 15 seconds, and in location by about 10 metres. 191 This temporal and geographical proximity makes the case quite different from Klamo, and more akin to Zandipour, where the relevant acts occurred within the one altercation and during the course of what was held to be one continuous episode or sequence of events. However, as the outcome in Lane demonstrates, the mere fact that the two acts occurred within the one altercation may not be enough to dispense with the need for extended unanimity. It may be necessary to look further. 192 The Courts in both Zandipour and Lane emphasised the need to look at the separation between the acts in not only time and location, but also in circumstance. This includes an examination of the extent to which the alternative acts or pathways require consideration of different evidence and issues. 193 In holding that there was no need for extended unanimity in Zandipour, the Court rejected as fanciful the suggestion that a murderous intention, or viable defence of self-defence, might have emerged at some moment between the relevant acts. Rather, both acts (the throw, and the subsequent kicking and stomping) occurred as part of the one continuous altercation, with little room for any realistic differentiation between the defendant’s state of mind in respect of either act. In Lane, on the other hand, the two acts or pathways required consideration of different evidence and issues. In particular, there was a real issue as to whether the first fall was even the result of any voluntary act on the part of the defendant. 194 The respondent contends that the present case is distinguishable from Zandipour, and more analogous to Lane, once one has regard to the evidence and issues at trial in relation to the two acts or pathways. Even if both acts might be described as having occurred within the one altercation, the altercation in the present case was, at the very least, a dynamic one, involving two phases. The evidence suggested that whilst the altercation commenced in the front yard and -- 52 of 56 -- [2023] SASCA 109 Doyle JA 51 driveway of the respondent’s home, there was a brief pause in the violence – during which time the respondent and Mr Newchurch were seen to follow the deceased off the respondent’s premises – before the violence resumed on the roadway out the front of the respondent’s home. The source and nature of the evidence, and the issues presented, differed in respect of each phase of the altercation. 195 Most of the first phase of the altercation was captured in footage obtained from a CCTV camera mounted on the roof of a house over the other side of the street. This included footage of the first stabbing motion; described by the prosecutor in opening as showing that the respondent “swung or swiped with his left hand in which he held the knife coming across [the deceased’s] front and around to the opposite side of [the deceased] as [the deceased] had turned and twisted slightly towards the accused”. However, it also included subsequent footage of the deceased walking backwards onto the roadway, without any apparent blood or stab wound on his back. 196 Whilst some of the second phase of the altercation was captured on the CCTV footage, not all of it was. The prosecution relied upon oral evidence from a Mr Pearce to the effect that, during this phase of the altercation, he saw a person (who on the prosecution case was the respondent) come “flying across the road” and swing his arm around to the right of the deceased’s left back, after which his shirt turned red and he fell to the ground. Mr Pearce described the person as having a “shiny object”, which he later realised was a knife, in his hand when engaged in this stabbing motion. 197 In the circumstances, the issues presented by the first and second acts differed, at least in emphasis. There was an issue of identification in respect of the second stabbing that did not arise in respect of the first stabbing. Further, the potential defences of self-defence, defence of another, and defence of property took on a different complexion in respect of the first stabbing. 198 The prosecution, on the other hand, sought to distinguish Lane on the basis that there were two causative acts in that case, whereas there was only ever one (causally relevant) stabbing in the present case. In other words, there were two falls causing death in Lane, and only one stab wound in the present case. I accept that the present case is distinguishable from Lane on this basis. For the reasons given by Lovell JA, I also accept that this feature of the present case makes it more naturally amenable to an argument that the only uncertainty was as to the precise location and timing of the one causally relevant act; and that the uncertainty was therefore confined to the factual or evidential pathway through which that act was to be established. 199 However, for the reasons explained earlier, I am not persuaded that this basis for distinguishing Lane is determinative of the need for an extended unanimity direction. The potential for an extended unanimity direction does not arise from a consideration of how many causally relevant acts in fact occurred. In Klamo there was only ever one causally relevant shaking of the baby; and, indeed, in Lane, a -- 53 of 56 -- [2023] SASCA 109 Doyle JA 52 matter in issue was whether the first fall was in fact the result of any voluntary act at all on the part of the defendant. Rather, the potential for an extended unanimity direction arises from the fact that the prosecution case, and evidence, left open two potential acts (in Lane, two applications of force, and in the present case, two stabbing motions), each of which, if proved, was capable of constituting the actus reus of the alleged offence. 200 It is difficult to pin down the significance of the fact that there was only one causally relevant stabbing in the present case. Given that proof of one would exclude any possibility of the other having occurred, it might be said that proof of one was destructive of the other, noting that the existence of mutually destructive pathways is sometimes said to be an indicia of the need for extended unanimity. On the other hand, if one focuses upon the stabbing motion by the defendant, rather than a causally relevant stabbing, then proof of one stabbing motion would not be destructive of the other. On the evidence, both stabbing motions may have occurred, but with only one successfully striking, and fatally wounding, the deceased. In my view, consideration of the mutually destructive nature of the two alternative pathways to guilt does not assist in a case such as the present. It tends to devolve into a consideration of the level of abstraction at which it is appropriate to articulate the actus reus (a stabbing motion simpliciter, or a stabbing motion that pierces the skin and hence is causally relevant), which is the very issue underpinning resolution of whether or not it is necessary to give an extended unanimity direction. 201 A second basis for distinguishing Lane is the concern of the judges in that case with whether the first fall was in fact the result of any deliberate act of the defendant at all. The CCTV footage appeared to leave open the possibility that the first fall was a result of the deceased simply tripping or stumbling, rather than the result of any physical force applied by the defendant. In other words, there was a possibility on the evidence that the deceased died as a result of a fall which was not the result of any deliberate act of the defendant. The same could not be said of the second fall, which fairly clearly resulted from a punch thrown by the defendant. Intuitively, there was something problematic in those circumstances about a verdict which did not require unanimity as to which of the acts left to the jury occurred, and caused the deceased’s death. 202 That said, even this basis for distinguishing Lane only takes the matter so far. To say that there was a possibility that the first fall in that case was not the result of any deliberate act on the part of the defendant is, after all, to say no more than that there was an issue that arose on the first pathway that needed to be addressed before there could be any finding of guilt based upon that pathway. That was true of both pathways in Lane, and both pathways in the present case. 203 Further, the decision in McCarthy stands as a reminder that even in cases where the relevant course of violence has distinct phases, relying upon different evidence and raising different issues, extended unanimity may nevertheless not be necessary. In that case, the nature of the violence differed between the striking -- 54 of 56 -- [2023] SASCA 109 Doyle JA 53 case and asphyxiation case, and was separated by some minutes. In addition, self- defence took on a greater prominence in respect of at least some aspects of the striking case, and the asphyxiation case required consideration of the reliability of an accomplice’s evidence. Yet Gray and Peek JJ both held that an extended unanimity direction was not required in the circumstances of that case. 204 I mention also the decision of the Victorian Court of Appeal in R v Heaney,146 where Ashley JA (Redlich and Kellam JJA agreeing) held that two stabbings by the defendant in the course of a relatively short, but interrupted and dynamic, argument and altercation were part of a single transaction or criminal activity and so did not require an extended unanimity direction. 205 In the ultimate analysis, I do not think this case can be resolved by comparing it with the outcomes in other cases. It must be resolved by a direct application of the principles in Walsh, and hence the various indicia listed in my summary of those principles in Ribbon. 206 Having considered all of the relevant indicia, and acknowledging that the issue is finely balanced, I am not persuaded that it was appropriate to give an extended unanimity direction in the circumstances of the present case. In my view, it was appropriate for the present case to be approached on the basis that the prosecution case alleged only one actus reus (namely, one fatal stabbing), with the two acts (stabbing motions) alleged by the prosecution, and supported by the evidence, being merely alternative factual or evidential pathways to establishing that actus reus. The evidence established that there was only one fatal stabbing. In considering the evidence in support of the prosecution case that the respondent was responsible for this stabbing, it is relevant that both of the alleged stabbing motions by the respondent occurred within the one altercation or episode of violence. While the altercation had two phases, and the evidence presented differing issues or emphases in respect of each of the two alleged stabbing motions, the two were nevertheless sufficiently related in nature, place, time and circumstance to be treated as merely different evidential or factual pathways to establishing the one actus reus. 207 I accept that this is ultimately no more than a conclusion from an overall assessment of the way in which the case was presented, and a judgment as to the level of permissible uncertainty in the verdict. But in my view, this case is akin to cases such as Royall, PL and Zandipour, where a degree of uncertainty as to the precise detail of the actus reus was acceptable. 208 I have mentioned the differing issues or emphases that arose depending upon whether the stabbing occurred on the driveway or on the roadway. In the absence of an extended unanimity direction, it would have been necessary to direct the jury in terms that ensured that jurors addressed both locations. If a juror could not be 146 R v Heaney (2009) 22 VR 164 at [85]-[93] (Ashley JA, Redlich and Kellam JJA agreeing); referred to in Zandipour at [75] (Warren CJ, Weinberg and Kaye JJA). -- 55 of 56 -- [2023] SASCA 109 Doyle JA 54 satisfied beyond a reasonable doubt as to the location at which the stabbing occurred, then he or she would need to exclude any ‘defences’ which arose at either location. Regardless of where the stabbing occurred, they would need to exclude as a reasonable possibility that the fatal stab wound was inflicted by a person other than the respondent. And regardless of where the stabbing occurred, he or she would need to exclude as a reasonable possibility any lawful defensive purpose. In my view, directions of this nature could have been given, without any prospect of prejudice to the respondent. Such directions would have ensured that the jury only returned a verdict of guilt in the event that they were unanimously agreed, beyond a reasonable doubt, that the respondent deliberately stabbed the deceased with the requisite intention and in circumstances that caused his death and were unlawful. In my view, in the circumstances of the present case, this would have been sufficient unanimity to sustain a verdict of guilty. Conclusion 209 For these reasons, I would answer Questions 1 and 2 in the manner proposed by Lovell JA. 210 I also agree with his Honour that it is unnecessary and undesirable for this Court to answer Question 3. In some cases, the fact that an answer will not resolve a dispute between the parties is a basis for declining to answer a question. However, given that the questions in the present case arose out of a verdict of acquittal, such that the answers will not have any impact upon that acquittal, the rationale for the questions reserved lies more in their capacity to provide guidance as to the appropriate resolution of similar cases in the future. While this rationale justifies the resolution of Questions 1 and 2, I do not think it justifies the resolution of Question 3. As Lovell JA said, any resolution of that question would involve considerations so specific to the circumstances of the trial in the present case that they would have little utility in resolving future cases. Further, and in any event, if, in accordance with the decision of this Court, there had been no unanimity direction, then the issue the subject of Question 3 would not have arisen. 211 I agree with Lovell JA’s answers to the questions reserved. -- 56 of 56 --