Martinez, Fazzari and Pereiras v The State Of Western Australia [2007] WASCA 143

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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6 July 2007

Judgment of the Court

M, F and P were indicted on a charge of wilful murder. It was alleged that on 28 February 1998 at Perth they wilfully murdered Phillip Walsham (PW). They were tried and each convicted of the crime of murder in 2006. The first ground of appeal is that, having regard to the evidence, the verdicts of guilty were unreasonable or could not be supported. The section of the Act is in almost identical terms to that which was under consideration in M v The Queen 1994 which said there are criminal appeal provisions in common form in Australia which allow a verdict which is unsafe or unsatisfactory to be set aside, notwithstanding that those words do not appear in the legislation. The test is set out in the following passages: 

"The question is one of fact which the court must decide by making its own independent assessment of the evidence [Morris v The Queen (1987) 163 CLR 454] and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' [Hayes v The Queen (1973) 47 ALJR 603 at 604]. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.”

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532; Knight v The Queen (1992) 175 CLR 495 at 504-505, 511]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen at 621]."

In the present case, each appellant relies upon the following particulars to support the contention that the verdicts of guilty were unreasonable or could not be supported, having regard to the evidence:  There was no evidence that the appellant had any involvement with the death of PW, or that he was at or in the vicinity of the footbridge at the time when (on the prosecution case) PW was thrown from it by one or more of the accused. The only witness (CP) who saw what, on the prosecution case, was PW thrown from the footbridge by the accused, did not identify any of the accused and said she saw no sign of a struggle. She did not see any of the persons, who she said were on the footbridge at the time, lay hands on PW; and described as 'a back flip' the way in which she said the person went off the footbridge and was unsure of the number or the sex of the persons she saw on the footbridge.

There was no evidence that the abrasion on the back of PW (which on the prosecution case was a mark made by a tyre lever used by one of the accused on returning to the Stirling Station) was in fact caused by a tyre lever, as distinct from the possibility that it may have been, and in any event the only evidence as to when the abrasion was probably made meant that it could not have been within a few minutes before PW was thrown from the footbridge as the prosecution hypothesised. There was no evidence capable of satisfying a reasonable jury beyond reasonable doubt that the accused had sufficient time, after leaving Fulmar Street, to return to the Stirling Station, and be on the footbridge with PW, when CP saw the 'group' of people on the footbridge.

Further, the verdict was unsafe or unsatisfactory, and it would be dangerous and a miscarriage of justice for the verdict to stand, having regard to the above, to the matters raised in the following Grounds, and to the other circumstances of the case, including the danger that, in the absence of any direct evidence implicating the appellant, and notwithstanding the trial Judge's directions, the verdict may have been affected by the evidence of an alleged confession by the appellant's co-accused, M, or by prejudice or 'propensity reasoning' based on the evidence of the appellant's earlier assault of the deceased."

The facts

On Friday 27 February 1998 PW finished work early in the afternoon and went to the city with friends. He returned to his parents' home in Kingsley. He was then 21 years of age. Friends called at his house, and from there the group went to the home of some other friends in Scarborough. They went on to Claremont, Fremantle and Leederville. They drank a good deal. The group walked to the train station, where they caught the last train from Perth to the Stirling train station. PW and his friends got off at Stirling train station. Amongst PW's friends were B and T. B walked away from the train station ahead of T and PW. T realised that PW was not following and went back to the train station and saw that PW was still there. PW was not feeling well. T set off after B to bring him back, but other events intervened.

At the same time as this was happening, the girls L1 and L2, who had been passengers on the last train from Perth, were walking along Cedric Street. L2 observed a white Commodore, which stopped to offer them a lift. Both L2 and L1 got in the vehicle. Its occupants were M, F and P and Magistro. There was an incident between B and the occupants of the white Commodore. B threw what he claimed to have been a ball, but which M, F and P thought was a rock. A bottle was then thrown backwards and forwards between the group before it smashed on the road near M, F and P' car. This led to M, F and P chasing B, who, with T, ran back towards the train station. Conheeney observed that the white Commodore was stationary during this incident. The 2 men who had got out of it returned to the car. He said that the vehicle then did a "rapid U-turn" and "roared" back in the direction of the railway station.

Next to the Stirling train station was a carpark. There was a footbridge which led from it to an area described as the bus concourse where buses (and taxis) pulled up to collect or discharge passengers. The footbridge which led to the bus concourse passed over a freeway onramp for southbound traffic wishing to join the Mitchell Freeway. B and T reached the carpark where they found PW. They left him and ran across the footbridge towards the bus concourse, believing that their pursuers would not connect them with PW.

M, F and P drove into the carpark. They were closely followed by a maroon Commodore TV and he was accompanied by LR. M, F and P jumped out of the vehicle in which they were travelling and ran across the footbridge. F and M were at the forefront. They were followed by P and TV (who had jumped out of his vehicle). F and M were shouting at B and T. The latter got far enough ahead of their pursuers to jump into a taxi, which fortuitously was stationary in the bus concourse area. It was already occupied by one passenger, but B and T were anxious to get away and told the passenger that they would pay for him as long as they could get out of the place quickly. The taxi driver had already turned on the taxi meter. He turned it off when B and T persuaded him to accept them as passengers. The agreed time at which the meter was turned off was 2.23.56. This becomes an important time, because it sets the first time parameter for the events that then unfolded. A short period of time elapsed before the taxi drove away, with the result that B and T evaded their pursuers.

At the time the taxi left the bus concourse, the pursuers were on the footbridge. When they saw the taxi leave, they abandoned the chase. F and M returned down the footbridge stairs to the carpark. P was present, but had not got as far on the footbridge as the others. As the group descended, they came upon PW. F and M attacked him. Without explanation, F kicked him to the head. It was described as a nasty and powerful kick by L2 and a "huge kick, like a martial arts kick" by L1. L1 did not give evidence, but had made a statement to that effect which was read in evidence. M also kicked PW to the head without explanation. There was no suggestion that P had attacked PW. At the time F kicked PW, he was not armed. He had, however, earlier been in possession of a tyre lever. He was armed with that tyre lever when chasing B and T. He had obtained the tyre lever from P, who was the owner and driver of the white Commodore. The tyre lever came from the boot of the car. The boot was opened either from the inside or the outside of the car, but it was not clear which. Nor is it clear whether and when the tyre lever had been returned to P. One thing was clear. F had used the tyre lever he had in his hand to strike the handrail on the footbridge. He later admitted in evidence doing it 18 times, because he was "just pissed off". His aggression was occasioned by the fact that B and T had got away. He admitted in his testimony to screaming at them words to the effect, "Come back, chicken shits".

After the attack on PW, there was remonstration with F from R, who was one of the group in the Commodore. She pushed F into the white Commodore. L2 and L1 were outraged at what had happened and decided to leave and have nothing further to do with the men who had picked them up. As they left, the white Commodore followed them and stopped at the entrance to the carpark in an attempt to persuade them to get back into the vehicle. They refused to do so. It then drove away at speed. Its occupants were M, F and P and Magistro. He had been in the car throughout. The car was followed by the maroon Commodore, which was driven by TV and in which R was a passenger. L1 and L2 went back to check on PW. They were concerned about him and thought that he was in distress. They endeavoured to persuade him to seek assistance. He indicated to them that he was all right and left them, walking towards the footbridge. They saw him begin to ascend the first flight of stairs leading to the footbridge. This was the last occasion upon which PW was seen alive.

A period of time elapsed before PW was seen again. When we conclude that he was seen again, a body which was clearly his was seen to fall from the footbridge. The time at which this occurred was generally accepted to be between 2.38 and 2.39 am. The defence were not prepared to concede that this event had occurred, but at the hearing of the appeal did not dispute that if it did occur, it must have been at or about that time. As the taxi meter had been turned off at 2.23.56, a period of approximately 14 to 15 minutes must have elapsed between the incident which we have described and PW's fall from the footbridge.

Evidence of CP

Although the defence questioned "the fall", there was clear evidence that such a fall was observed. CP, a 27-year-old senior human resource officer with an Honours degree in psychology, was travelling as a passenger in her mother's vehicle on the Cedric Street exit from the Mitchell Freeway which approached Cedric Street. At the intersection of the exit ramp and Cedric Street was a set of traffic lights. Beyond it was the southbound on-ramp to the freeway, and it was over this on-ramp that the pedestrian footbridge was erected. It was about 92 metres from the traffic lights at Cedric Street at which traffic exiting the freeway would be required to stop if those lights were red as the driver approached.

CP had been with her family at a function in Warwick. She had been there several hours and during the course of the evening had drunk what she described as "a few fruit punches with Vodka in it". She estimated that she had about 4 of these over a period of something like six hours. CP, her mother and her sister left Warwick at approximately 2.30 am and took the freeway back to their home in Woodlands. CP was in the front passenger seat. She recalled the approach to the Cedric Street intersection. The vehicle in which she was travelling was in the centre lane of the exit ramp, but the left lane for vehicles which had to turn right into Cedric Street. A turn to the left into Cedric Street was via a slip road. CP recalled that the vehicle in which she was travelling stopped at the intersection, waiting for the traffic lights to change. She was looking straight ahead, and the pedestrian footbridge leading from the carpark to the bus concourse was directly in front of her. She saw no other vehicles at the intersection, either travelling on Cedric Street, or stationary waiting for the traffic lights to change. She was certain that there was no vehicle alongside hers and none behind her. What she then saw is best recounted by direct reference to her testimony. It was as follows:

"We arrived shortly at the red traffic light and I was looking in the vicinity straight ahead and noticed a group of people walking briskly up the second flight of stairs towards the train station, so from the carpark section across, and glanced to mum because I knew it was the early hours of the morning and said, 'You know, it's bizarre that people are hurriedly looking like they're going to catch a train,' given there was no trains or buses running at that hour … So having seen these people, are you able to tell us anything about the people - the number that you saw?---It was a small group of people, so - believe it was sort of 3 or 4 people ascending the stairs, yeah. … and then glanced back, and the group on the footbridge had stopped, obviously heading towards the train station, and they were sort of clustered around the left hand side of the footbridge, and within a sort of split second one of the parties of that group propelled backwards over the furthest part of the railing and cleared the railing with - it looked like they would have been really athletic to obviously do that, and then followed the body down, whereby it bounced off the bitumen on the road, and I was just shocked. I think I swore, I screamed, and then was just numb. I was horrified. … it looked like they were very athletic or gymnasts or a swimmer backflipping - I could see the top half of the body and it appeared that the person that did that would have been facing towards me given it looked like his chest launched forward without the use of his hands or his arms to give him momentum. It just appeared a chest launch forward and then hit the concrete and bounced, and that horrified me.

CP's vehicle then moved away from the intersection. She had been looking at the body, but another vehicle interrupted her vision and as the vehicle in which she was travelling left the intersection, she glanced back at the footbridge and saw nobody there. The group she had previously seen was no longer in sight. Her Her testimony was strongly challenged at trial. There are some important questions which arise in relation to the facts at this point. The first is what PW had been doing between the time he was seen by L1 and L2 (when he was seen to walk up the first flight of steps at the footbridge) and the time at which he fell from the footbridge. That time was of the order of 14 or 15 minutes or less. The second question is whether the persons who CP saw ascend the footbridge were M, F and P and PW. The third question is whether M, F and P could, in the circumstances, have had time to go where they went and return to be on the footbridge at the time CP saw the events which we have described.

Evidence of SW

The fall from the footbridge must have been at 2.38 or 2.39 am. This time has been calculated because there was evidence that CP's mother had made a 000 emergency call from her home at 2.43.21. Her mother was SW. She recalled stopping at the traffic lights in the early hours of the morning in question. She was stationary, waiting for the lights to change when her daughter drew her attention to something. She looked ahead through the intersection and saw something lying on the road, a shape which looked like a coat, but which she knew was a body. It was a little towards the Perth side of the footbridge. The traffic lights had just changed and SW was about to drive into the intersection and turn right when her daughter spoke to her. She stopped the vehicle. She looked up towards the footbridge, but she saw nobody on it. Nobody had a mobile telephone and the decision was made that the best thing to do would be to drive directly home, which was only about 4 minutes or so away, and there to ring an ambulance. SW began to do that, but saw something out of the left-hand side of her eye that caused her to stop again. It was what appeared to be a white, or light-coloured car, coming from her left along Cedric Street. That vehicle turned into the southbound on-ramp which proceeds under the footbridge. SW was concerned that it would hit the body, but she observed it swerve around the body and continue on. As far as she could see, the vehicle did not stop. She then drove on to her home. She did not recall any further stops, and she travelled close to the speed limit, or a little over it. She drove straight into her carport, grabbed her keys and went quickly into the house, where she dialled the 000 number. The time at which that call was received was 2.43.21.

The time frame

Based upon SW's estimate the time of the fall observed by her daughter was thought to be between 2.38 am and 2.39 am. That time was calculated by deducting 4 to 5 minutes from the time of the emergency telephone call at 2.43.21. The taxi driver had turned his taxi meter off at 2.23.56. That was the time at which B and T had jumped into the taxi. Some seconds must have then elapsed before the taxi moved away. M, F and P gave up the chase and descended the footbridge to the carpark. There, F and M attacked PW. They then got into the white Commodore. They attempted to persuade the 2 young women to rejoin them, but without success. They then drove away on Cedric Street. Just how long this took is unknown. Different estimates were provided at trial by counsel for the various appellants and attempts were made at the hearing of the appeal to reconstruct the time frame. It is not possible to do so with any accuracy. However, whatever it was, it was some time within the space of the 14 or 15 minutes between the time at which the taxi driver turned off his meter and the time at which it was estimated CP saw the body fall. During that time, M, F and P drove to another location. If it was they who returned and who were seen on the footbridge by CP, they had to have descended from the footbridge, attacked PW, spoken to the 2 girls, driven to the location in question, returned to the carpark and got to the first landing of the footbridge before CP saw them ascend the steps. To have got to the carpark in their vehicle, parked it and alighted from it, they had to have preceded SW's vehicle to the intersection of the freeway off-ramp and Cedric Street, because neither SW nor CP saw any other vehicle in the vicinity as they approached the traffic lights. As the learned trial Judge observed to the jury, the time frame was, on any view of it, a very narrow one.

The sequel

A taxi driven by JB stopped at the position where the body was found. It was not the first vehicle to reach the scene, but JB made an emergency call from the scene at some little time prior to 2.41.48. He radioed his base and a call was made from there to the emergency centre. Seven seconds later, a call was made from the 000 number to the St John Ambulance. Police arrived at the scene at 2.48 and the ambulance arrived at 2.57. It arrived at Sir Charles Gairdner Hospital at 3.15. PW was operated upon, but died. The time of death recorded in the hospital notes was 5.30. The cause of death was multiple injuries. This was the finding of Dr Margolius, a forensic pathologist, on 3 March 1998. She found multiple fractures of the skull, including at the base of the skull. She also found fractures of the ribs on the right side of the chest and of the symphysis pubis. There was damage to the lungs, the liver and the right kidney. There was also blood in the abdominal and chest cavities. Her evidence was that no amount of surgical intervention could have saved PW. He had a high blood alcohol level. The blood analysis for alcohol in the post-mortem blood sample was 0.162 per cent. The alcohol content analysed in bile was 0.137 per cent. The effect of large-scale blood transfusions may have had a diluting effect and thus PW's blood alcohol level may have been higher. The learned trial Judge told the jury that, although the matter was one for them, they might well be satisfied that PW was heavily intoxicated. That conclusion was clearly open.

The prosecution case

The prosecution was unable to present any direct evidence that M, F and P were responsible for causing PW to fall from the footbridge. Further, they were unable to establish by any direct evidence how PW came to fall. The evidence of CP was limited about that. It was open to the jury to accept CP's evidence that there were 4 people on the footbridge and that she saw a person "backflip" over the footbridge. It was also open to the jury to accept her impression that the persons on the footbridge were males. However, she did not attempt to identify who it was she saw on the footbridge and nor could she. She was in a stationary vehicle approximately 92 metres away. Once it is accepted that the jury was entitled to be satisfied beyond reasonable doubt that CP observed a body fall from the footbridge at a time when there were 4 people on that footbridge, it is clear that the jury was entitled to be satisfied that PW met his death as a consequence of the fall from the footbridge. The jury was also entitled to be satisfied that there was a group of persons on the footbridge immediately before he fell and that there were 3 persons, apart from the one who fell, who appeared to be male.

The next step which the prosecution had to take was to establish beyond reasonable doubt that the 3 persons on the footbridge with PW were M, F and P. To do this, the prosecution relied upon a number of pieces of circumstantial evidence. However, before turning to that evidence, a problem with the prosecution case is exposed. If the circumstantial evidence was capable of establishing beyond reasonable doubt that M, F and P had returned to the Stirling train station shortly before PW fell from the footbridge, it was necessary to prove that it was they who were on the footbridge. There were, however, 4 persons in the vehicle driven by P. They were M, F and P and Magistro. If the prosecution was successful in proving beyond reasonable doubt that the vehicle containing M, F and P and Magistro returned to the Stirling train station, it was still necessary to prove that it was M, F and P who were on the footbridge. There was no evidence to identify which 3 of the 4 persons who arrived in P' vehicle were the ones who were on the footbridge. Further, it was essential for the prosecution to establish that if it could be proven that M, F and P were on the footbridge with PW, they, and each of them, were criminally responsible for his fall from the footbridge. No principal offender could be identified, nor could any person be identified as aiding within the meaning of s 7 of the Criminal Code (WA) ("Code"). Although a direction was given to the jury by the learned trial Judge that consideration would need to be given to the provisions of s 7 of the Code, it is difficult to see how there was any evidence that could identify any person as either a principal offender or an aider.

The prosecution alleged that M, F and P had between them formed a common intention to prosecute an unlawful purpose in conjunction with one another. That purpose was said to be the assault of PW. It was put in 2 ways. First, there was a common intention to assault PW formed prior to returning to the train station. Second, if the first intention was not established, there was a common intention formed to assault him upon return to the train station when M, F and P may have returned there to collect a tyre lever. This latter proposition required the jury to enter into conjecture that M, F and P may have returned to the train station to look for a missing tyre lever, but there was no evidence upon which to found that proposition. In our view, it should be disregarded. If M, F and P had formed a common intention to unlawfully assault PW, it was necessary for the prosecution to prove that, in the prosecution of such a purpose, an offence was committed of such a nature that its commission was a probable consequence of the prosecution of the purpose. Each of M, F and P would then be deemed to have committed the offence.

The problem for the prosecution was first to establish that there was evidence from which the jury could conclude that M, F and P had formed a common intention to prosecute the unlawful purpose of assaulting PW. The second problem was for the prosecution to prove that in the assault of PW, the offence of murder was committed in such circumstances that its commission was a probable consequence of the unlawful assault. This required the jury to conclude beyond reasonable doubt that M, F and P had between them formed a common intention to assault PW and it was a probable consequence of that decision that PW would be unlawfully killed in circumstances constituting the crime of murder. There was, however, no evidence to link the two. There was no evidence at all as to what actually happened on the footbridge, save that CP saw a person flip backwards from it. We have said that she saw no sign of a fight or struggle. Whether the person was pushed, thrown or otherwise forced off the footbridge by one or more of the 3 persons who were there was unknown. In our view, this void in the evidence made it impossible for the jury to be satisfied beyond reasonable doubt that if it was the 3 appellants who were on the footbridge (and to reach that conclusion, the jury had to discount the presence of Magistro), they were there with a common intention to assault PW and in circumstances where it was a probable consequence of that purpose that he would be unlawfully killed in circumstances constituting murder. No one person could be identified as having done anything, nor could the group itself be identified as having done any particular thing. All that was known was that PW backflipped off the footbridge to his death. There are any number of possible scenarios that might be imagined resulting in the fall of PW from the bridge, not involving a common intention to assault PW in such a way that his death was a probable consequence. For example, it is entirely consistent with CP's evidence that, during the movement of a group of people across the footbridge, an altercation broke out between PW and one of the group which caused that person to spontaneously and unexpectedly push PW in the upper body, causing him to fall from the bridge. In that hypothetical scenario, one and only one unidentifiable member of the group would have committed an offence. There was evidence from a biophysicist, Dr James, that the distance that PW's body had travelled horizontally (3.7 metres) was inconsistent with a fall, as opposed to a throw or push. While he said that 3.7 metres would probably be the "outer range" of distances for a push by one person, he accepted that he could not exclude any scenario, especially since the nature and duration of the force applied was unknown.

The prosecution sought to weave together a number of strands of circumstantial evidence from which it contended that the jury could be satisfied beyond reasonable doubt that the 3 appellants were on the footbridge immediately before PW's fall and that they were guilty of the crime of wilful murder (although the verdict was guilty of murder) because of the principles of criminal complicity contained within either or both of s 7 and s 8 of the Code. Both M, F and P and the respondent identified at the hearing of the appeal alleged circumstances relied upon by the prosecution in the circumstantial case against M, F and P. M, F and P listed those circumstances as follows:
Alleged animus towards PW and aggressive mood.
Opportunity.
Evidence of CP of the persons on the footbridge.
Superficial abrasion on PW's back.
White mark on the inside of PW's t-shirt.
Lies demonstrating a consciousness of guilt.
Alleged false alibi.
Esoteric knowledge.
Evidence of a vehicle parked in the  carpark.
Implausibility of other people being responsible.

The respondent set out the items of circumstantial evidence in the following way:
Violence towards PW and general aggression.
Opportunity.
C-shaped injury on PW's back.
Esoteric knowledge.
Lies demonstrating consciousness of guilt.
False alibi.
Number of people on the footbridge.
Evidence of Joseph L ("L").
Possibility of other persons being responsible.
Evidence of A.

The final item of circumstantial evidence relied upon by the respondent related only to the appellant, M. It concerned his alleged conversation with MH. As the respective contentions in relation to what the circumstantial evidence was are basically the same, we will use the respondent's list.

Violence towards PW and general aggression

The prosecution placed emphasis upon the incident between B, T and M, F and P at the Stirling train station. They relied upon M, F and P, F and M, chasing B and T at a time when F was armed with a tyre lever as evidence of general aggression. They relied particularly upon F's striking of the handrail with a tyre lever to demonstrate this fact in relation to him. The prosecution placed great emphasis upon the fact that, upon returning from the footbridge, F had kicked PW hard to the head area without explanation. They also relied upon the fact that M had kicked him in a similar manner. It was contended that all of this had occurred at close to 2.25 am, because the taxi driver who collected B and T had turned off his meter when they jumped into the taxi at 2.23.56.

The prosecution thus contended that F and M were in a h8ened state of aggression in the early hours of 28 February 1998. They were prepared to chase people and prepared without reason or explanation to kick in the head a person who was sitting minding his own business at the carpark. The prosecution contended that P also demonstrated aggression because he was prepared to facilitate aggression by removing tyre levers from the boot of his vehicle and he had himself joined in the chase of B and T. It was conceded that there was no evidence that P had done anything to PW. The evidence certainly establishes that F and M were in an aggressive frame of mind at or about 2.25 am on the morning of 28 February. Their attack on PW establishes that fact. There is much less evidence in relation to P. All that can be said about him is that he was in company with F and M and did produce tyre levers from the boot of his vehicle. However, there was evidence from B that shortly after the bottle-throwing incident he heard a man, who he believed to be the driver of the car, say something like, "Leave it" or "Let's go".

Whether the evidence is sufficient to allow an inference to be drawn that, because of their general aggression and the actions of two of M, F and P in kicking PW, they were likely to have returned and attacked him again, is another question. Factors telling against such a conclusion might include the fact that R had been outraged at the behaviour of F and M, and had remonstrated with F to the point where he tried to apologise to her. Further, P had done nothing to PW and apparently held no animus toward him. He did speak of being "pumped up" whilst at Odin/Fulmar, but what he said was in response to leading questions and could only be evidence against him. Moreover, each of the witnesses who gave evidence in this respect said that M, F and P had calmed down at Odin/Fulmar or by the time they got there. This was the effect of the testimony of each of F, P, M, R and TV. The only way in which the jury could have concluded that there was continuing anger (more especially, anger directed towards PW) was if they rejected all of this evidence and drew an inference solely from the fact that they had been angry earlier. As we have said, the anger that had found its outlet in the assault on PW was directed, not at him, but at B and T and there was no evidence of any kind to suggest that M, F and P, or any of them, were aware of any connection between B and T and PW.

It was, of course, unnecessary for the prosecution to prove any motive on the part of M, F and P for returning to assault PW a second time. However, the question of motive bears upon the likelihood of M, F and P having returned, upon their reason for returning if they did so and hence upon the question which of them were on the footbridge at the relevant time and upon their intention, or that of any one or more of them, at the material time. As to this last point, in Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311 at 317 Griffith CJ said: "Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention."

Opportunity

The prosecution set out to prove beyond reasonable doubt that M, F and P had the opportunity to depart from the carpark after the assault upon PW, drive to the corner of Odin/Fulmar in Balcatta, remain at that location for a period of time, and then return to the carpark by driving in a southerly direction on the Mitchell Freeway to the Cedric Street off-ramp and thence to the carpark, and then making their way to the top of the footbridge, where they caused PW to fall to his death. The prosecution accepted that it had the responsibility of proving this opportunity beyond reasonable doubt. They conceded that it was necessary for the jury to reach this conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt: Shepherd v The Queen (1990) 170 CLR 573 per Dawson J at 585. We have already pointed out in our analysis of the facts that there could have been only 14 or 15 minutes between the time the taxi driver turned off his meter and the time at which it was estimated CP saw PW fall to his death. Those times were respectively 2.23.56 and 2.38/2.39.

For the prosecution to prove that M, F and P had the opportunity to have caused PW's death, they had to establish that M, F and P could have left the carpark some time after 2.23.56, having returned down from the footbridge, assaulted PW, had the conversation with R, entered their vehicle, had the conversation with L1 and L2, driven to Odin/Fulmar, stayed there for a short period and then returned to the carpark. They then had to climb the steps of the footbridge and cause the death of PW at or at about 2.38/2.39. On any view of it, this was a very tight time frame. The way in which the prosecution went about seeking to prove that M, F and P had the opportunity to do all of this within the time frame of 14 or 15 minutes was to rely primarily upon the evidence of F in the course of his video record of interview on 2 April 1998. He had said that it took 3 or 4 minutes to drive from the  carpark to Odin/Fulmar and that they were there for 2 and a half to 5 minutes. This meant a time frame of approximately 9 minutes, leaving something in the order of six minutes within which to return to the footbridge.

However, one thing that seems to have been overlooked at the trial is that whatever F said in his record of interview on 2 April 1998 about the time spent at Odin/Fulmar could only have been evidence against him. The prosecution seems to have relied upon it as evidence generally that the 3 appellants must have spent between 2 and 5 minutes at Odin/Fulmar.

The prosecution led evidence from 2 police officers about the time it would have taken to drive from the carpark to Odin/Fulmar and to return. Det Garner conducted a number of time trials and Sgt Adams conducted a number of time trials. Garner's trials were conducted between 2.25.40 and 4.22.46 in the morning in a Holden Commodore. It took an average of 3 minutes 29 seconds for 3 trips. It was a 3.08 kilometre journey. The return trip took an average of 3 minutes, 52 seconds. On the return trip, the police travelled at a maximum speed of 100 kilometres per hour. A return trip was also made by reversing the outward journey to the intersection. The average of the 3 trips at a maximum speed of 60 kilometres per hour was 3 minutes, 44 seconds. These times approximated the estimate of F about the time it took to drive from the Stirling train station to the intersection. There was a further problem. The prosecution had to satisfy the jury that they should reject estimates of time given by M, F and P and by R and TV in their sworn testimony that the time spent at Odin/Fulmar was much longer than 5 minutes. R made an "educated guess" of 8 or 9 minutes. TV also made an estimate of 8 or 9 minutes.

The estimates of time given by R and TV in their testimony were inconsistent with previous estimates they had given. The jury was, of course, entitled to reject their testimony on this issue, just as it was entitled to reject the testimony of M, F and P. But it is difficult to see upon what evidence estimates could have been made. At the hearing of the appeal, Senior Counsel for the respondent contended that it was only necessary for the prosecution to prove beyond reasonable doubt the "possibility" that M, F and P had the opportunity to return to the train station within the time frame we have mentioned. We would prefer to put it that it was necessary for the prosecution to prove beyond reasonable doubt that M, F and P had the opportunity (our emphasis) to leave and return to the train station within that time. Talk of "possibilities" confuses the standard of proof that is required.

Counsel also contended that it was open to the jury to use "ordinary experience" in making this assessment. That submission is difficult to understand. It was necessary for the prosecution to prove beyond reasonable doubt that within the time frame available, M, F and P could have left the Stirling train station and returned to it in time to have caused the death of PW. That meant careful scrutiny of the evidence, not speculation. We fail to see how any "ordinary experience" which the jurors may have enjoyed could have assisted them in reaching a conclusion beyond reasonable doubt that M, F and P had the opportunity to leave and return to the train station within the critical 14 or 15-minute period. In looking at whether it was proven beyond reasonable doubt that there was such an opportunity, it was not possible for the jury to rely upon individual estimates in records of interview of any one or more of M, F and P. Statements made by them in their records of interview were admissible only in evidence against them personally. They could not be translated to a general estimate in relation to time spent at Odin/Fulmar.

It seems to us that the prosecution had a problem in establishing beyond reasonable doubt that the opportunity existed for M, F and P to leave the train station and return within the time frame which was estimated. The taxi into which B and T had jumped had its meter turned off at 2.23.56. It must have left some time (probably seconds) after that time. M, F and P were then on the footbridge. They descended the footbridge and then assaulted PW. R remonstrated with F. She pushed F into the vehicle. Time clearly elapsed between the time M, F and P were standing on the footbridge and saw the taxi leaving and the time they got into P' vehicle in the  carpark. The vehicle then left the carpark, but stopped to see if the girls whom they had earlier picked up could be persuaded to return to the vehicle. It then left and drove towards Odin/Fulmar. At that intersection, there was an incident involving R. She was clearly upset. It took some time to calm her down and then for her to leave in TV's vehicle. M, F and P then got into P' vehicle.

If P then drove back to the train station via the freeway, he had to take the Cedric Street off-ramp. CP was in her mother's vehicle travelling south on that off-ramp some time prior to 2.38/2.39. She saw no other vehicle in the vicinity. If M, F and P were responsible for the death of PW, they must therefore have reached the carpark, stopped the vehicle and got out of it before the vehicle in which CP was a passenger arrived at the intersection of the freeway off-ramp and Cedric Street. If the fall occurred between 2.38 and 2.39, this narrowed even further the time that was available for M, F and P to have travelled to Odin/Fulmar and returned. It had to be a period less than 14 to 15 minutes.

A lot of things had to happen within the 14 to 15-minute period between 2.23.56 and 2.38/2.39. The jury had to be satisfied beyond reasonable doubt that the opportunity existed for M, F and P to have done those things and returned in time to be at or about the base of the footbridge when the vehicle in which CP was a passenger arrived at the nearby intersection. In our view, it was just possible that this could have occurred. This would only be if (and only if) the absolute minimum possible time is allowed for each step in the sequence of events postulated. We do not accept that the evidence established beyond reasonable doubt that M, F and P had the opportunity to leave the train station and return to it within the critical time frame.

C-shaped injury on PW's back

The prosecution contended that there was evidence to support the conclusion that an abrasion on PW's back was caused by one of the tyre levers to which M, F and P had access from P' vehicle. Because there was no evidence that PW had been struck with a tyre lever when he was initially assaulted by F and M, it was contended that an injury on his back consistent with being struck by a tyre lever led to the conclusion that M, F and P had returned to the Stirling train station after the initial assault and had then struck him with the tyre lever. No attempt was made to suggest who had struck him or in what circumstances, but it was put that each of M, F and P had access to tyre levers which were in P' vehicle and at least one of M, F and P must have done it. Evidence about the injury on PW's back was given by Dr Margolius. She found an injury on the middle of the left scapula region of PW's body. She described it in the following terms: "So it's a C-shaped superficial linear abrasion 4 centimetres in length over the middle of the left scapula region. So what I've illustrated - the scapula region overlies - beneath it is the wing of the shoulder. There's a triangular bone at the back and it's in that region and it has got a shape to it. It has got a C-shape and it has got distinct edges, so I've called it a C-shaped superficial linear abrasion 4 centimetres in length."

It was her opinion that the abrasion could have been caused by a tyre lever. It could also have been caused by any variety of curvilinear objects. When asked to express an opinion about when the injury could have occurred, Dr Margolius said: "The only thing I can say, by looking at it, is that he was alive when that happened. Yes. And that's really all you can say?---That's all I - and that it was fresh. That's all I can say. Well, when you say fresh, it was at least 24 hours old?---Well, we're pushing it. You know, you can't say it's - if I say 24 hours, then it can be 24 hours and one minute. I can only give you a range, and a day is about the range I can give you and that would be wrong to be any closer. But you would say then about 24 hours old?---Well, I've seen a reaction, so it could be between 12 and 24. I can only give an estimate."

Dr Margolius was pursued in re-examination about the time frame of "12 to 24 hours" and she said: "In relation to the curved injury, you gave a time frame of 12 to 24 hours. I just need to understand. What are you referring to as the 12 to 24 hours?---What we are referring to is really the time of the event such as the impact on the body to the time of death. It's not till the time I do the autopsy, so it's at best a guesstimate. What do you say about the possibility of it being less than 12 hours?---Yes, it could be absolutely less than 12. If you say to me it's six hours, I would say yes. If you say to me it's 5 minutes, the answer is no, the reason being there is a vital reaction. A vital reaction means life is vital, there is some response, so on seeing a response, I would say six hours, I'm seeing it already, so that's the bottom end of the six; about six hours. Going further than 24 would be ridiculous. Right. Is it possible to be precise about these things, the estimation of time?---No. Even under the microscope we couldn't be absolutely precise."

It seems to us that the evidence of Dr Margolius has to be interpreted as meaning that the bottom end of her estimate of the age of the abrasion was six hours. As PW died at 5.30 am on 28 February, the abrasion had to have been caused some time between 5.30 am and 11.30 pm on 27 February and not in the early hours of Saturday, 28 February, as the prosecution contended. Whatever the other evidence about the abrasion and marks found on the T-shirt of PW, the evidence of Dr Margolius meant that M, F and P could not be linked to an attack on PW with a tyre lever at or about 2.38/2.39 am on 28 February.

Esoteric knowledge

The prosecution contended that M in his video record of interview on 2-3 March 1998 had displayed esoteric knowledge (something known only to the "inner circle") in relation to what had happened to PW. M had said "we didn't do such a thing like that - - throw him off the - - someone off the - - something like that". The interviewing detective had said nothing about PW having been thrown from the footbridge. Likewise, F in his video record of interview on 2-3 March 1998 said "I've received absolutely no information about him, like, getting thrown off or getting - jumping off or nothing". The interviewing detective had said nothing to F about PW being thrown from the footbridge. It was put that the use of the word "thrown" by each of M and F left it open to the jury to conclude that each of them was aware how PW had fallen from the footbridge; namely, that he had been thrown from it, and they knew that because they were on the footbridge at the time it occurred.

Although the prosecution case was that each of M and F knew and had said that PW had been "thrown" from the footbridge, the prosecution was not in a position to prove that was how PW met his death. Although the prosecution case was that PW was either pushed or thrown from the footbridge, CP was the only witness who was able to throw any light on how PW had left the footbridge. Her evidence was that he had done a backflip off the footbridge, not that he had been thrown. In his record of interview on 2-3 March 1998, F was told by the officer that the person who had been "push-kicked to the face" was the one who died. He was asked if he was aware of it. He said that he had heard about it because Carlos (P) had seen it on television. He was asked if there was a photograph of the person on television, and F said, "Something like that". When pressed further, he said that he had said to Carlos, "Did you hear about that guy that jumped off the bridge on Saturday?" and Carlos said, "Yeah."  He looked exactly the same as that guy-- -". F said that Carlos had said something like, "He jumped off the bridge".

In his testimony, F said that on the Sunday he found out that a person had died at the Stirling train station on the Saturday morning. He said that one of his friends had come over and told him. At first it did not click with him that it was the same night because they had gone out on "Friday night". After a little bit more investigating, they found out that it was the same guy. He spoke to Carlos (P) about it and was told by P that he had seen it on the news. He said that he then went to get a newspaper and when he returned to see P, he was told that a picture of PW had been shown on television. This was the same person whom he and M had kicked, and it left him petrified. He said that it was after this that police had told him that they were investigating the death of somebody who had been found underneath the footbridge. When cross-examined, F admitted that he told a detective in his record of interview of 2-3 March 1998 that he had absolutely no information about the person being "thrown off" or "jumping off" and that all that he had heard was that on television they saw that somebody had jumped off the footbridge. He said that he had not personally seen it on television. He claimed that he had read about it in a newspaper and Carlos had told him that he had seen "something like" a photograph of PW on television. Under strong  cross-examination, he insisted that he had never thrown PW off the footbridge.

M in his record of interview of 2-3 March 1998 was asked whether he had heard "on the media" what had happened to the person found on the freeway. He said that he did not see anything and he did not hear about it on the news. He agreed that the first he had heard about the person on the freeway was when a detective had mentioned it to him on 2-3 March. It was then that he said "we didn't do such a thing like that - - throw him off the - - ". In his record of interview of 2 April 1998, M said that "the boys" had been talking because they had seen the news and then he saw the news as well and was shocked to find that the person who had died was the person whom they had assaulted.

In his testimony, M agreed that he had never read anything in the newspaper about PW's fall from the footbridge. He agreed that his testimony before the court on 10 April 2006 was the first time he had mentioned anything about others having seen something in the newspaper. He said, however, that the matter had been discussed when others had come to his house. He had seen something on television, but he was not sure what it was, or when it was. All that he knew was that PW had died. He was pressed in cross-examination as to whether he had heard anything on the news suggesting that PW had been thrown off the footbridge. He replied that he was not sure. He insisted that "the other guys" had read a newspaper article before he had spoken with the police, but he agreed that he had never read any newspaper article. He agreed that his testimony on 10 April was the first time that he had said that the others had come to him saying, "We read the newspaper".

There was therefore some evidence from F and M to suggest that each may have known that it was suspected that PW had fallen from the footbridge as a result of human intervention at the time they were initially interviewed by the police. However, when assessing the w8 and cogency of that evidence, it should be observed that the lengthy and detailed interviews conducted by the police as to the circumstances in which PW fell were only explicable by an assumption that they were investigating the question of whether his fall had occurred as the result of human intervention (although, in M' case no fall was mentioned by the police - they said only that PW's body was found "at the bottom of the freeway"). The assertions made by each of M and F to the effect that they were not responsible for "throwing" PW from the footbridge are therefore just as readily explained by an assumption which they made as to the matter under investigation as by knowledge of the precise manner in which PW came to fall from the footbridge.

Lies demonstrating consciousness of guilt and False alibi

We have dealt below with the alleged lies and the false alibi. We have concluded that some of the lies relied upon as giving rise to an admission of complicity in the offence charged were incapable of doing so and that the jury was consequently left with the impression that they could be used as evidence against the makers of the respective statements when this was not so. We have also concluded that the effect of the misdirection in this respect was to unduly highlight these lies and to give them a significance that they were incapable of bearing. We have concluded that only in relation to the alleged lies told by each appellant about the visit to McDonald's at the time of the death of PW could there be a lie (if it be so found by the jury) which was capable of amounting to an implied admission of complicity in the killing. The question for the jury was whether the lie (if so found) was capable of amounting to such an implied admission or whether it was an attempt by an innocent man to bolster his defence. For reasons which we will later explain, in our view, it was open to conclude that each appellant deliberately lied about the trip to McDonald's from the  carpark. It is a much more difficult thing to conclude that the lies were implied admissions of complicity in the killing.

Number of people on the footbridge

The prosecution relied on the evidence of CP to the effect that she was confident that there were 4 people on the footbridge immediately before she saw the person fall. The prosecution case was that this evidence should be accepted beyond reasonable doubt. The prosecution argued that the only reasonable inference that could be drawn from the evidence, in combination with other evidence, was that M, F and P were the people responsible for causing PW to come off the footbridge, fall onto the roadway and suffer fatal injuries. It is true that CP's evidence at trial was ultimately to the effect that she was confident that there were 4 people on the footbridge. She said that she "saw 3 and an extra person backflip". It is equally true that CP had, on prior occasions, described the number of persons differently. We have said that, in the initial stages of her evidence, she had spoken of "3 or 4 people ascending the stairs" and earlier, in 1998, on 3 occasions she said that she saw 2 to 3 people on the footbridge. In this case, the jury had the undoubted advantage of having seen and heard CP. Full regard must be given to that fact: M v The Queen at 493. Having reviewed CP's evidence, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the truth and accuracy of that evidence. Despite some contradictions at different times in what she had said about the number of persons on the footbridge, she was ultimately confident at trial that she saw a total of 4 people on the footbridge. The jury was, therefore, entitled to accept her evidence in that respect.

Nevertheless, CP made no attempt to identify the persons on the footbridge, other than to say that they appeared to be male. Nor did CP endeavour to explain how PW had fallen from the footbridge. At best, she could say that she saw him do a backflip. She did not suggest that any one of the persons in the group had pushed him, or picked him up and thrown him. There was thus a lacuna in the prosecution case. This became evident during the course of the appeal and submissions on the subject were invited. No ground of appeal was advanced to the effect that, even accepting CP's evidence and accepting that M, F and P were on the footbridge, there was no evidence pointing to either a principal offender, or complicity on the part of each accused in the commission of the offence alleged. Perhaps this is understandable, as M, F and P were at pains to dispute the suggestion that there was any evidence that they were ever on the footbridge. The attack on CP's evidence was centred upon the conflict in her statements about the number she had seen.

However, even if it was open to the jury to accept CP's evidence and to be satisfied beyond reasonable doubt that she saw a group of 4 persons on the footbridge, major questions still remain. The first is: who were the 3 persons on the footbridge with PW?  If they were from the group who had been travelling in the white Commodore, what reason was there to conclude that they were the 3 appellants to the exclusion of Magistro? The prosecution reasoning seems to have been that because 2 of the 3 appellants had earlier attacked PW, and P had been present at the scene with a tyre lever at one time, they were the persons who must have been on the footbridge. That reasoning cannot withstand scrutiny. There was no reason why, if it was the occupants of the white Commodore who were there, any 3 of the 4 may not have gone up onto the footbridge. This would particularly be so if, as the prosecution contended in the alternative, they had returned to collect a tyre lever.

The second question is: if it be assumed that the 3 persons on the footbridge were M, F and P, what actually happened before PW fell? Was he pushed, and, if so, by whom? If he was pushed, with what intention? Was it an intention that he fall to his death, or something less? Was there a principal offender with others aiding? Alternatively, was there any evidence of a common intention to assault PW?  If so, when and in what circumstances was it formed? Even if there was, was it a probable consequence of the assault that he would fall to his death? The test, in this last respect, is objective. It cannot be answered otherwise than by examining the circumstances in which the assault was committed: Stuart v The Queen (1974) 134 CLR and R v Barlow (1997) 188 CLR. All of these questions remain unanswered. They are critical questions and, had they been considered by the jury, we do not see how they could have reached any confident conclusions.

The directions in relation to complicity were in accordance with law, but they were not tailored to the facts of this case. The lacuna in the prosecution case was not exposed. The evidence of CP was central to the prosecution case, but it did not take it far enough. Not only did it fail to identify who was on the footbridge, but it failed to establish any of the elements of criminal complicity. Taken at its highest, there were 3 persons on the footbridge with PW. If those 3 came from the car in which M, F and P and Magistro had been travelling, it was not known who the 3 were. The mere fact that 2 of the 3 had previously attacked PW did not allow for reasoning that it was they and P (who had supplied a tyre lever) who were the 3. Even if the 3 appellants were on the footbridge with PW, the circumstances of his fall are entirely unknown. Whether he was pushed and, if so, by whom was never established. The only evidence was that he did a backflip off the footbridge. Assuming (reasonably) that he did not voluntarily and of his own motion act in that way, there was still no evidence whether he was pushed, or how hard, or why. No evidence existed from which criminal complicity of any one of the 3 could be determined.

Evidence of LL

LL lived a short drive from the train station. He was a shift worker and required to start work at 2.45 am on Saturday, 28 February 1998. He gave evidence that he left home at "roughly" 2.25 am. He was driving his blue Toyota vehicle. His route took him along Cedric Street to the "on-ramp of the freeway". As he drove along, he was looking for his wife, who had gone out to a "Ladies night" on the preceding evening. He expected to see her in the family's second car. He got to the on-ramp of the freeway. The lights were changing green, but he was travelling very slowly because of the lookout he was keeping. As he went onto the on-ramp, he saw a body "lying on the floor". It was under the footbridge toward the north and in the middle of the roadway in the left-hand lane. LL had difficulty recalling precise details because the incident had occurred 8 years beforehand. He described the body as lying "longways". By that he meant on its stomach, face down and horizontal to the road. He thought the head was away from him. He could tell that it was a male body. He stopped his vehicle and looked up to the footbridge. He saw no movement on the footbridge. He looked to his right, which was the bus depot, but he could see no buses. He looked to the left and he saw a car under the "pick-up ramp". It was "half underneath and half hanging out" of the shelter there. It was a white sedan with 4 doors and pretty large. It looked like a late model vehicle, "pretty new". By that he meant 1990, or something close to that. He could not, however, say what sort of a car it was. He did, however, form an impression that it looked in pretty good condition. The windows were dark "tinted". He could see nobody around. LL was concerned that there may have been "a setup" and he thought he had better leave. He passed the body and looked around at the car again to see whether there was any movement, but there was not. He decided to go to work and report it when he got there.

There were difficulties with LL's evidence. He said that he saw the body on the northern side of the footbridge, before he reached it. His description of the location of the body was at odds with that of the witness, JB, who arrived on the scene after him. It was inconsistent with all of the other evidence as to where the body was. The prosecution relied upon LL's evidence about sighting a white 4-door sedan with tinted windows in good condition. The prosecution case was that the description of this vehicle was similar to the appearance of P' vehicle. In fact, P' vehicle was a 1984 Holden VK Commodore and there was evidence that in 1998 there were more than 300,000 white motor vehicles registered in Western Australia.

On LL's evidence, he had reached the scene and seen the body well before 2.38 am. He put the time at "2.30 in the morning". This was consistent with the necessity for him to be at work in East Perth by 2.45 am. His house was very close to the scene where the body was found. On no view of it, could P' vehicle have been back at the carpark at 2.30 am. Nor could PW have fallen from the footbridge before that time. In the circumstances, we consider that little weight should be given to the evidence of LL. Much of it was contradictory to other evidence. LL's evidence about seeing a white sedan in the carpark raised questions. The description of the vehicle did not identify it positively as the vehicle of P and the evidence revealed that there were many white vehicles registered in Western Australia at the relevant time. At its highest, LL's evidence did not add anything of significance to the prosecution case. It is incapable of overcoming the lacuna in the evidence as to what actually occurred on the footbridge, or the difficulties encountered by the prosecution in proving that M, F and P had the time within which to return to the footbridge from Odin/Fulmar before PW fell to his death.

Possibility of other persons being responsible

The prosecution case was that there was insufficient evidence for the jury to conclude that any person or persons other than M, F and P were responsible for the death of PW. The prosecution accepted that there were other persons about the area of the train station shortly before the time of PW's fall from the footbridge, but the prosecution sought to establish that any persons who may have been in the vicinity of the train station had left well before 2.38/2.39. Reliance was placed upon the evidence of L2 that when she departed from the carpark after PW had been assaulted, there were no other persons in the vicinity. Reliance was placed on LL's evidence that he saw no other persons in the vicinity. There was also reference to the evidence of the taxi driver that when he took B and T from the train station he saw nobody. CM, a passenger in the taxi into which B and T had jumped, did not recall seeing any other persons around the train station. There was evidence from LM, a taxi driver, that he had seen a group at the Stirling train station at a time which he estimated at around 2.20 am. This, however, was earlier than the time at which B and T left in the taxi.

The defence sought to establish that there were other people in the vicinity at the relevant time. C estimated that approximately 20 people had alighted from the last train at the Stirling train station at approximately 2.12 am. B had said that he was passed by a number of motor vehicles as he walked along Cedric Street. Other witnesses said that they saw people at different times. There was evidence that there had been previous assaults at the train station. There was evidence from a JY that he was unsure whether he had killed PW. JY was called by the defence at trial, but his testimony was, in our view, unlikely to have raised a doubt in the mind of jurors. He suffered from schizophrenia; was admitted to a psychiatric unit of a hospital after speaking to police in 1999; and only thought about the matter a week after PW's death. He thought he may have done it and based those thoughts upon what he had read in the newspaper. On the night in question he was heavily intoxicated. None of this evidence was of any real assistance as regards the question whether it had been proved beyond reasonable doubt that the 3 persons with PW (accepting CP's testimony in this respect) were M, F and P. That was the central question, not whether there may have been somebody else present at the scene. In any event, the answer to this last question seems to us necessarily to have been equivocal.

Evidence of A

The prosecution relied upon the evidence of A to implicate M in a confession that he had thrown PW off the footbridge. The jury had the advantage of seeing and hearing A give evidence. His testimony was capable of being regarded as being an admission on the part of M implicating him in the death of PW, but it was evidence which suffered from at least 2 shortcomings. In the first place, it was an alleged confession which was immediately withdrawn. In the second place, A had said nothing about it to police until after M had come with MH's sons and paid him a visit following an incident in which MH had been injured.

Conclusion

We have reviewed the evidence in this case with a view to making our own independent assessment of that evidence so as to determine whether, notwithstanding that there was evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand: M v The Queen at 492-493.

Each of M, F and P was entitled to have his case separately considered. Each was in a different position. At its highest, the principal evidence against F consisted of: the fact that for no apparent reason he had assaulted PW some time after 2.24 am and had done so with a violent kick to the area of the head. In records of interview with investigating police, he told lies that were capable of constituting a consciousness of guilt. Those lies were that immediately after leaving the train station after the assault on PW, he and his friends had gone to McDonald's in Tuart Hill. In his record of interview of 2-3 March 1998, he made a statement about PW "getting thrown" off the footbridge when no police officer had said anything about the circumstances in which PW had died, and had made no reference to him being thrown from the footbridge and in circumstances where it could be concluded that he had no outside knowledge of the incident. At its highest, the principal evidence against M was the same as the evidence against F, with the additional factor that he was alleged to have made a confession in the presence of A that he had thrown PW over the footbridge. That alleged confession was hedged with the qualification that it was immediately retracted and there were other aspects of A' evidence which raised a question mark about its reliability. While we take this evidence into account in the appeal by M (it is only admissible in that appeal), it is not of sufficient weight and cogency to overcome the deficiencies in the prosecution case to which we have referred.

The case against P was very slim. It consisted primarily of his presence at the time of the assault by F and M upon PW and his lies about going to McDonald's immediately after that event. There was evidence that he had hidden his tyre levers, but once it is accepted that on Dr Margolius' evidence any injury to the back of PW must have been caused before 11.30 pm, the fact of hiding the tyre levers becomes irrelevant to the charge brought against M, F and P. In our view, the evidence was insufficient to satisfy a jury beyond reasonable doubt that any one of the accused was guilty. We do not discount consideration of the fact that the jury was the body entrusted with the primary responsibility of determining guilt or innocence. Nor do we discount the fact that the jury had the benefit of seeing and hearing the witnesses. We pay full regard to those considerations: M v The Queen at 493. However, we consider that the verdict of guilty of murder reached in relation to each of M, F and P was unreasonable and cannot be supported. We do not believe that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of any one of M, F and P. The primary reasons for this conclusion are:

It was not possible for the jury to be satisfied beyond reasonable doubt that M, F and P had the opportunity of leaving the train station after the assault upon PW, to travel to Odin/Fulmar (where time was taken up because of the incident involving R) and thence to return to the train station in time to be on the first landing of the footbridge before CP observed what she saw occur on that footbridge.    Even if it be accepted that there were 3 persons on the footbridge with PW immediately before he fell, and 3 of those persons were from the vehicle driven by P, there was no proof as to the identity of the 3. Even if M, F and P had been the 3 on the footbridge with PW, there was no evidence how PW came to fall from the footbridge, other than CP's account of the backflip that she saw. In these circumstances, there was a lacuna in the prosecution case, in that there was no evidence to identify any offence which could have constituted a principal offence, a secondary offence, or involvement in a common enterprise to prosecute an unlawful purpose in the prosecution of which the death of PW was a probable consequence.

We are conscious of the fact that it is of critical importance to recognise that in considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: R v Hillier (2007) 81 ALJR 886 per Gummow, Hayne and Crennan JJ at [46], citing  Shepherd v The Queen per Dawson J at 579. As is pointed out by Gummow, Hayne and Crennan JJ in R v Hillier at [38], it is a mistake for a Court of Appeal when considering features of the circumstantial case sought to be made out against an accused person to do so in isolation from the evidence as a whole. We have not done that.

On all of the circumstantial evidence, the jury had to be satisfied beyond reasonable doubt that the accused and each of them was guilty of the offence charged, or one of the alternatives. For the reasons that we have outlined, we do not consider that it was open to the jury to be so satisfied. The verdict is accordingly unreasonable and cannot be supported having regard to the evidence. We would allow the appeal on this ground.

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